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provisions of the act of November 3, 1893, being entitled under the act of March 2, 1905, to the full pay and allowances of a major on the active list, is entitled since the date of the latter act to the same medical attendance and medicines at the expense of the United States, as are authorized for a major on the active list. The regulations as to such medical attendance and medicines should in all respects be complied with by such officer. Officers on the retired list of the Army above the rank of colonel detailed under said act of 1893 are not entitled to the said allowance.
COMPUTING INCREASED PAY FOR FOREIGN SERVICE.
The $2 per month which the act of February 2, 1901, provides that firstclass gunners shall receive, and the $1 per month which it provides that second-class gunners shall receive, is a part of their "pay proper," and the 20 per cent increase of "pay proper" allowed them as enlisted men by the act of June 30, 1902, should be computed on their pay as increased by said act of February 2, 1901.
(Decision by Assistant Comptroller Mitchell, June 14, 1905.)
The Auditor for the War Department transmits, June 6, 1905, for approval, disapproval, or modification, the following construction of the acts of June 30, 1902 (32 Stat., 512), and February 2, 1901 (31 Stat., 749):
"Jacob Bruck, a private of the Fifty-ninth Company, Coast Artillery, qualified as a second-class gunner January 5, 1903, and was honorably discharged from the service July 20, 1903, for a disability. He served beyond the limits of the United States, and is entitled to 20 per cent increase on his pay proper under the act of June 30, 1902 (32 Stat., 512).
"The only doubtful question involved in the settlement of this claim is as to whether the 20 per cent increase for foreign service should be computed on the $1 per month allowed a second-class gunner under the provisions of the act of Congress of February 2, 1901 (31 Stat., 749), which reads:
"That first-class gunners shall receive two dollars per month and second-class gunners one dollar per month in addition to their pay.'
"The purpose of this statute would seem to be to add $1 and $2 per month to the pay of gunners as a reward for some excellence or proficiency as enlisted men of the Artillery Corps. It is additional compensation earned in the performance of their duties, and not an allowance in the nature of a reimbursement.
"In the Mills case, decided by the Supreme Court March 13, 1905, the court said:
"The words "pay proper" we see no reason to think are to be construed differently from the word "pay." The term means compensation which may properly be described or designated as "pay" as distinguished from allowance, commutation for rations, or other methods of compensation not specifically described as "pay.""
"I am of opinion, therefore, and so decide, that the 20 per cent increase authorized by the act of June 30, 1902 (32 Stat., 512), should be computed on the additional compensation granted to gunners by the act of February 2, 1901, supra."
The act of June 30, 1902, supra, provides:
"That hereafter the pay proper of all commissioned officers and enlisted men serving beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of
The term "pay proper" is equivalent to "pay," and "pay " is composed of minimum pay and other compensation which may be described or designated as "pay," as distinguished from an "allowance" or "commutation." (United States v. Mills, supra.)
The $2 per month which the act of February 2, 1901, supra, provides that first-class gunners shall receive, and the $1 per month which it provides that second-class gunners shall receive, is "in addition to their pay." The words “in addition to," in their ordinary acceptation, in which sense Congress is presumed to have employed them, signify "in increase of." (In re Daggett, 9 N. Y. Supp., 654; 2 Connolly Sur. Rep., N. Y., 235.) First and second class gunners, therefore, by said act receive $2 and $1 per month, respectively, "in increase of their pay;" or, in other words, their pay is increased by law to that extent.
As "pay proper" is equivalent to "pay," it follows that the 20 per cent increase of "pay proper" allowed to first and second class gunners as enlisted men by the act of June 30, 1902, over and above their "pay proper as fixed by law for time of peace," should be computed on their "pay" as increased by the act of February 2, 1901.
The Auditor's construction is approved, for the reasons above stated.
PAY OF RETIRED OFFICERS OF THE REVENUECUTTER SERVICE.
Under the provisions of section 9 of the act of April 12, 1902, commissioned officers of the Revenue-Cutter Service placed, under the act of March 2, 1895, on the permanent waiting-orders list, are entitled to 75 per cent of the present pay of the rank upon which they were retired.
(Comptroller Tracewell to the Secretary of the Treasury, June 15, 1905.)
In your communication of June 10, 1905, you request my decision of a question which you therein present as follows:
"1. Section 9 of the act approved April 12, 1902, provides as follows:
"That all officers borne upon the retired or permanent waiting-orders list at the date of the passage of this act, or hereafter, shall receive seventy-five per centum of the duty pay, salary, and increase of the rank upon which they have been or may be retired.'
"Section 2 of said act provides:
"That the said commissioned officers shall rank as follows: Captains with majors in the Army and lieutenant-commanders in the Navy; first lieutenants with captains in the Army and lieutenants in the Navy; second lieutenants with first lieutenants in the Army and lieutenants (junior grade) in the Navy; third lieutenants with second lieutenants in the Army and ensigns in the Navy.'
"2. By section I of said act, a second assistant engineer in the United States Revenue-Cutter Service is made to rank with a third lieutenant in said service.
"3. At the time of the passage of this act the duty pay of a third lieutenant and second assistant engineer in the RevenueCutter Service was $1,200 per annum.
"4. There are at present in the service a third lieutenant and two second assistant engineers who at the date of the passage of this act were on what was known as a 'Permanent waiting-orders list' (provided for by the act of Congress approved March 2, 1895), at one-half active duty pay. Since the passage of the act of April 12, 1902, the officers referred to have been allowed 75 per cent of the duty pay they were receiving when placed on permanent waiting orders' under the act of March 2, 1895, víz, $1,200, with the longevity pay allowed to officers of corresponding rank in the Army.
"5. It is now claimed, as the pay of third lieutenants and second assistant engineers of the Revenue-Cutter Service was increased to $1,400 per annum (the pay of second lieutenants
in the Army) by the act of April 12, 1902, that the pay of the three officers mentioned should be on that basis instead of on the basis of $1,200 per annum.
"6. Your opinion is respectfully requested as to whether the third lieutenant and two second assistant engineers referred to are entitled to retired pay, including longevity pay, on the basis of $1,200 or $1,400 per annum."
Section 3 of the act of April 12, 1902 (32 Stat., 100), provides as follows:
"That the commissioned officers of the Revenue-Cutter Service shall hereafter receive the same pay and allowances, except forage, as are now or may hereafter be provided by law for officers of corresponding rank in the Army, including longevity pay."
I think this provision applies to all commissioned officers of the Revenue-Cutter Service, including those who were
placed on waiting orders" at the time of the passage of the act. Under the provision in the act of March 2, 1895 (28 Stat., 920), officers "permanently incapacitated" and "placed on waiting orders" were entitled to only "one-half activeduty pay." Section 6 of the act of April 12, 1902, supra, provides that officers found to be incapacitated for active service as the result of or incident to the service or the infirmities of age, or physical or mental disability, and not to their own vicious habits, shall be "retired from active service and placed on a retired waiting-orders list." Section 9 of the latter act also provides as follows:
"That all officers borne upon the retired or permanent waiting-orders list at the date of the passage of this act, or hereafter, shall receive seventy-five per centum of the duty pay, salary, and increase of the rank upon which they have been or may be retired: Provided, That no longevity increase of pay shall be allowed for any length of service accruing after retirement."
This provision includes officers "placed on waiting orders" under the act of March 2, 1895, supra, with officers "retired from active service and placed on a retired waiting-orders list," and provides that they shall receive 75 per cent of the duty pay "of the rank" upon which "they have been or may be retired."
Under these provisions I think it is clear that the third lieutenant and two second assistant engineers to whom you refer are entitled to receive three-fourths of the pay of officers
of the Army of the rank corresponding to the rank held by them, respectively, at the time they were placed on waiting orders, including longevity pay for service prior thereto.
PROMOTION OF OFFICERS OF THE REVENUECUTTER SERVICE.
The promotion of an officer of the Revenue-Cutter Service prior to his passing the required examination is not authorized.
(Acting Comptroller Mitchell to the Secretary of the Treasury, June 16, 1905.)
In your communication of June 13, 1905, you request my decision of the question which you therein present as follows:
"1. At the time of the passage of the act of April 12, 1902, there were 37 captains, 37 first lieutenants, 37 second lieutenants, and 37 third lieutenants and cadets in the Revenue-Cutter Service.
"2. The act of Congress approved August 3, 1876, which provided for the grade of cadet in the Revenue-Cutter Service, specified that 'The whole number of third lieutenants and cadets shall at no time exceed the number of third lieutenants now authorized by law.'
"3. There are at present two vacancies in the grade of second lieutenant, and another will be created on the 30th of the present month on account of the resignation of an officer which is to take effect on that date.
"4. In order to provide for a full class of cadets it is desired to advance three of the third lieutenants who have not been examined for promotion to the foot of the list of second lieutenants, where vacancies exist for them, as it is not convenient for the Department to examine these candidates for promotion at the present time. It is intended, of course, that they are not to be commissioned second lieutenants until they shall have passed the required examination.
"5. Under your decision of July 2, 1902, in the case of Engineer H. O. Slayton, U. S. Revenue-Cutter Service, it is held that an officer of the Revenue-Cutter Service is entitled to compensation of the rank to which promoted from the date the vacancy was created, and the third lieutenants to be advanced to the grade of second lieutenants will therefore when promoted receive the same increased compensation as though promoted at the present time.