Morse v. United States

delivered the opinion of the court.

The question in this case is whether the appellant, an officer on the retired list of the Navy, is entitled to the difference between the retired pay of a lieutenant and that of a lieutenant commander, from the date of the passage of the act of June 29,1906, 34 Stat. 553 , 554, c. 3590. At the time of his retirement he held the rank of lieutenant. The act referred to. provides that any officer not above the grade of captain, whose name is borne on the official register .of the Navy, and having certain other qualifications that the appellant concededly possesses, “and who has heretofore been, or may hereafter be, retired on account of wounds or disability incident to the service . ’ . , may, in the discretion of the President, by and with the

Appellant had served in the Navy during the Civil War, and thereafter until July 22, 1874, when he was retired on furlough pay upon approval by the President of the finding of a Retiring Board that he was incapacitated for performing the duties of his office, and that the incapacity did not originate in the line of duty. The Retiring Board acted under § 23 of the act of August 3, 18(51, 12 Stat. 287 , 291, c. 42, now §§ 1448 to 1457 of the Revised Statutes. Afterwards, and on July 17,1878, under the provisions of § 1594, Rev. Stat.,’ he was transferred by the President, with the consent of the Senate, from the furlough to the retired-pay list, and thereafter received 50 per centum of the highest sea pay of his grade as lieutenant.

On June 26, 1902, he was transferred from the half-pay list to the three-quarters pay list, under the authority of a special act of Congress, approved June 10, 1902, 32 Stat. 1444 , c. 1075, which reads as follows: “Be it en-' acted, etc., that the Secretary of the Navy be, and he is hereby, authorized and empowered to transfer Lieutenant Jerome E. .Morse, of the retired list of the United States Navy, from the half-pay list of the seventy-five per centum pay list of retired officers, under section fifteen hundred and eighty-eight of the Revised Statutes of the United States; and the said transfer shall take effect as of the passage of this Act.”

The section of the Revised Statutes therein referred to is as follows: “Sec. 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

In January, 1907, appellant was nominated by the President for advancement to the grade of lieutenant commander bn the retired list, in accordance with the provisions of the act of June 29, 1906, first above mentioned; the nomination was confirmed.by the Senate, and the appellant was shortly afterwards advised in the usual mode by the Secretary of the Navy that he had been advanced from June 29, 1906, the date of the passage of the act.

The question is, whether the appellant (having all other qualifications for advancement under the act referred to) is to be considered as having been retired for disability incident to the service; and this depends upon the question whether the special act of June 10, 1902, operated to change his status from that of an officer retired for incapacity not incident to the service, to that of an officer retired for incapacity incident to the service.

The Court of Claims resolved this question against the claimant (46 Ct. Claims, 361). This we think is correct. The case is in effect governed by Potts v. United States, 125 U. S. 173 , and United States v. Burchard, 125 U. S. 176 .

The argument to the contrary is based upon the act of June 10, 1902. Its title is — "An act for the relief of Lieu

The case differs widely from McLean v. United States, 226 U. S. 374 , and is not controlled by it.

Judgment affirmed.