of warrant machinist in the second three years of service, and on February 2, 1904, he was ordered to active duty under authority of the act of June 7, 1900 (31 Stat., 703).

If Mr. Grant is entitled to include the time since he was retired in computing his pay for active service, he should be paid as of his third three years from January 3, 1905; otherwise he should be paid as of his second three years' service. Section 1556 of the Revised Statutes, among other things, provides:

"Boatswains, gunners, carpenters, and sailmakers, during the first three years after date of appointment, when at sea. one thousand two hundred dollars: on shore duty, nine hundred dollars; on leave or waiting orders, seven hundred dollars. During the second three years after such date, when at sea, one thousand three hundred dollars; on shore duty, one thousand dollars; on leave or waiting orders, eight hundred dollars. During the third three years after such date, when at sea, one thousand four hundred dollars; on shore duty, one thousand three hundred dollars; on leave or waiting orders, nine hundred dollars. During the fourth three years after such date, when at sea, one thousand six hundred dollars; on shore duty, one thousand three hundred dollars; on leave or waiting orders, one thousand dollars. After twelve years from such date, when at sea, one thousand eight hundred dollars; on shore duty, one thousand six hundred dollars; on leave or waiting orders, one thousand two hundred dollars."

Section 15 of the act of March 3, 1899 (30 Stat., 1008), known as the navy personnel act, among other things, provides:

"That the pay of warrant machinists shall be the same as that of warrant officers, and they shall be retired under the provisions of existing law for warrant officers."

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Sections 1453 and 1588 of the Revised Statutes provide: "1453. When a retiring board finds that an officer is incapacitated for active service and that his incapacity is the result of an incident of the service, such officer shall, if said decision is approved by the President, be retired from active service with retired pay, as allowed by chapter eight of this title."

"1588. The pay of all officers of the Navy who have been retired after forty-five years' service after reaching the age of sixteen years, or who have been or may be retired after forty years service, upon their own application to the President, or on attaining the age of sixty-two years, or on account of incapacity resulting from long and faithful service, from

wounds or injuries received in the line of duty, or from sickness or exposure therein, shall, when not on active duty, be equal to seventy-five per centum of the sea pay provided by this chapter for the grade or rank which they held, respectively, at the time of their retirement. The pay of all other officers on the retired list shall, when not on active duty, be equal to one-half the sea pay provided by this chapter for the grade or rank held by them, respectively, at the time of their retirement."

The act of August 5, 1882 (22 Stat., 286), provides:

66* * *

Hereafter there shall be no promotion or increase of pay in the retired list of the Navy, but the rank and pay of officers on the retired list shall be the same that they are when such officers shall be retired." *

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The act of June 7, 1900 (31 Stat., 703), provides:

"During a period of twelve years from the passage of this act any naval officer on the retired list may, in the discretion of the Secretary of the Navy, be ordered to such duty as he may be able to perform at sea or on shore, and while so employed shall receive the pay and allowances of an officer of the active list of the grade from which he was retired."

This act of June 7, 1900, supra, provides:

1. That during a period of twelve years from the passage of the act any naval officer on the retired list may, in the discretion of the Secretary of the Navy, be ordered to such duty as he may be able to perform at sea or on shore.

2. That such officers "while so employed shall receive the pay and allowances of an officer of the active list of the grade from which he was retired."

By section 1556, Revised Statutes, the pay of warrant officers is governed by length of service. By said section they are divided, for pay purposes, into five classes or five separate and distinct pay grades. Each period of three years' service as prescribed by said section constitutes a separate and distinct pay grade. (See Rutherford v. United States, 18 Ct. Cl., 339.)

If Mr. Grant was retired on December 4, 1903, because of incapacity for active service, and that incapacity was the result of an incident of the service, when so retired and not on active duty, he became entitled, under section 1588, Revised Statutes, to receive pay equal to 75 per cent of the sea pay provided for the grade or rank which he held at the time

of retirement, viz, 75 per cent of the sea pay of a warrant officer in the second period of three years' service.

When he was employed on active duty under the act of June 7, 1900, he became entitled while so employed to receive the pay and allowances of a warrant officer of the pay grade from which he was retired, viz, the pay grade of the second period of three years' service, as prescribed in section 1556, of the Revised Statutes. In computing his pay while employed, as provided in said act of June 7, 1900, he is not entitled to be credited with any time after date of his retirement. The act of June 7, 1900, fixes his pay while employed thereunder, which remains as fixed and unaffected by time spent either on the retired list or while employed under said act, viz, the present pay of a warrant officer in second period of three years' service. (See Thornley v. U. S., 18 Ct. Cl., 111; Rutherford v. U. S., id., 339; McClure v. U. S., id., 347; Thornley v. V. S., 113 U. S., 310; Roget v. U. S., 24 Ct. Cl., 165, and 148 U. S., 167.) The decision in the case of Lieutenant Townley, (MS. Dec. vol. 15, p. 75), is hereby overruled.

HOLDING TWO APPOINTMENTS AT THE SAME TIME.

A retired officer of the Army holds an office to which compensation is attached, within the meaning of section 2 of the act of July 31, 1894, which provides that no person holding an office, the compensation attached to which amounts to $2,500 per annum, shall be appointed to or hold any other office to which compensation is attached; and, therefore, a captain in the Army who, under the act of April 23, 1904, was placed on the retired list with the rank and retired pay of a major, and his pay thereby increased to more than $2,500 per annum, is prohibited from holding at the same time the office of clerk of class 2 in the Treasury Department, which has compensation attached thereto of $1,400 per annum.

(Comptroller Tracewell to the Secretary of the Treasury, February 4, 1905.)

By your reference, dated January 5, 1905, of a communication from the Auditor for the War Department, dated January 4, 1905, you request my decision of the question therein presented as follows:

"It appearing from General Orders, No. 191, issued by order of the Secretary of War, December 21, 1904, a copy of

which is forwarded to you herewith, that Capt. Herman Schreiner, retired, U. S. Army, a clerk of class 2 in this office, having been duly nominated to the Senate for advancement in grade, and the Senate having advised and consented, December 16, 1904, to his advancement, was placed upon the retired list of the Army by the President, with the rank of major from April 23, 1904, under the provisions of the act of Congress approved April 23, 1904 (33 Stat., 264), and that his pay or compensation as such retired officer with the rank of major with twenty years' service is $2,625 per annum, I have the honor to suggest for consideration and authoritative decision the question as to whether or not Major Schreiner is within the inhibition of section 2 of the act of Congress approved July 31, 1894 (28 Stat., 205).

"Said inhibition reads as follows:

"No person who holds an office, the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars, shall be appointed to or hold any other office to which compensation is attached, unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate.""

I assume that your reason for requesting my decision of the question presented in the communication of the Auditor is to determine whether payment of the salary of Captain Schreiner as a clerk of class 2 in the Office of the Auditor can be lawfully made to him after the date when his compensation as an officer of the Army was increased to $2,625.

The provisions in the act of April 23, 1904, to which the Auditor refers, are as follows:

"That any officer of the Army below the grade of brigadiergeneral, who served with credit as an officer or as an enlisted man in the Regular or Volunteer forces during the civil war prior to April ninth, eighteen hundred and sixty-five, otherwise than as a cadet, and whose name is borne on the official register of the Army, and who has heretofore been, or may hereafter be, retired on account of wounds or disability incident to the service, or on account of age or after forty years' service, may, in the discretion of the President, by and with the advice and consent of the Senate, be placed on the retired list of the Army with the rank and retired pay of one grade above that actually held by him at the time of retirement."

It appears by General Orders, No. 191, of 1904, of the War Department, that Captain Schreiner, having been duly nomi

nated to the Senate under the above provisions for advancement in grade, and the Senate, on December 16, 1904, having advised and consented thereto, was by said order, dated December 21, 1904, placed upon the retired list of the Army by the President, with the rank and date of rank of major from April 23, 1904.

It also appears that prior to this date he held both the office of captain of the Army on the retired list and of clerk of class 2 in the Office of the Auditor for the War Department, the compensation attached to each of which offices amounted to less than $2,500 per annum. The act of placing him on the retired list with the rank and pay of major, under the provisions of the act of April 23, 1904, supra, was not an appointment to the office of major of the Army. The rank and pay of officers of the Army are subject to control by Congress, and may be increased or diminished by an act of Congress, and such action does not require a new appointment by the President. (Wood v. United States, 107 U. S., 414.) In the present case the President has not appointed Captain Schreiner a major of the Army, but by General Orders, No. 191, supra, the President, in pursuance of said act, placed him upon the retired list with the rank of major.

When so placed on the retired list with the rank of major, by the terms of the act he became entitled to the pay of major of the Army on the retired list. The terms of General Orders, No. 191, provide also that he shall take rank as major from April 23, 1904, the date of the act. The question whether he is entitled to the pay of major on the retired list from that date is not necessarily involved in the question presented to me for decision, and therefore it is not necessary for me now to decide it. But I am of opinion that the pay of major of the Army on the retired list became attached to the office of captain of the Army on the retired list, which office it is understood he still continues to hold, on the date he was given the rank of major, namely, December 21, 1904. Therefore on that date the office of captain of the Army on the retired list held by him, he having had four or more terms of five years of service, had annual compensation attached thereto amounting to $2,500 and more. (Secs. 1261, 1262, and 1274, Rev. Stat.) The act of July 31, 1894, supra, provides that no person who holds an office, the compensation attached to which