United States v. Moore

delivered the opinion of the court.

On the 12th'of April, 1869, the • appellee was appointed an assistant-surgeon in the navy of the Unitéd States. On the 24th of February, 1874; he was examined for promotion to the grade of surgeon* On the following day, he was notified by the Secretary of the Navy that the report of the board of -examiners was approved by the department, and that -from that date he' would be regarded as a passed assistant-surgeon. From that-tiine up to the institution of this suit-he received the. pay fixed by law 'for passed assistant-surgeons during-the firsCfive years after their.appointment as such.'

The statutes of the". United States provides-as follows:'-^-

“ The active list of -the medical;corps,of the navy shall' consist of fifteen medical' directors, fifteen medical inspectors,, fifty, surgeons, and one hundred' assistant-surgeons.” ' Rev. Stat.,' sect. 1368- “ No person shall bé appointed surgeon until he has served as an assistant-surgeon at-least- two- years "on ;bciard a public vessel of the United States, at-sea, nor;until he has been examined and approved for-such-* appointment by’a board of naval surgeons designated by-the Secretary of the Navy.’* Id., sect. 1370. “The commissioned officers arid warrant officers on the active list of. the navy of the .-United States,- and the petty officers, seamen, ordinary seamen, firemen, coal-heavers; arid. employés in the navy, shall be entitled to receive, annual pay at the rates herein stated after their respective designations.” . : . “ Passed assistant-surgeons, passed assistant-paymasters, and passed assistant-ehgirieers, during' the first five years 'after date of appointment; when at sea, $2,000; on ; shore-duty, $1,800; on léavd or-waiting, orders, $1,500 ;after *762 five years from such date, when at sea, $2,200; on shore-duty, $2,000; on leave or waiting orders, $1,700.” Assistant-surgeons, assistant-paymasters, and second assistant-engineers, during the first five years after date of appointment, when at sea, $1,700; on shore-duty, $1,400; on léave or waiting orders, $1,000; after five years from such date, when at sea, $1,900 ; on shore-duty, $1,600; on leave or waiting orders, $1,200.” Id.,-sect. 1556.

The appellee claims, that the phrases, “ after date of appointment ” and. “ from such date,”- touching passed assistant-surgeons, refer to the date of his original appointment, when he entered the service' as assistant-surgeon, and not to the time of the notification by the Secretary' of the Navy that he would thereafter' be regarded as a passed assistant-surgeon. The question arising from these conflicting constructions-is the one presented for our determination The government entertains the latter view, and we think correctly. It has always hereto-, fore obtained in the Navy Department.

The place of passed assistant-surgeon is- an office, and the notification by the Secretary of the Navy was a valid appointment to it. United States v. Hartwell, 6 Wall. 385; Const. U. S., art. 2, sect. 2.

The context in which the phrases occur shows clearly that they relate to the appointment of passed- assistants, and not to that of assistants who have not passed. The former are there expressly named and provided for. The latter are neither named nor alluded to. They belong to distinct classes, and separate and distinct provision is made for the pay of each-.

According to the construction contended for by the appellee, if a passed assistant did not become such until ten years after he en tered the service as an assistant, he would receive pay five years as a passed assistant before he reached that grade. This is a necessary consequence of the appellee’s proposition, and sets its error in a strong light. Such a result could not have been intended by Congress. It would make--the law in all such cases retrospective. A statute is never to be so construed as to have this effect, if it can be reasonably avoided. The presumption, until rebutted, is the other way. Sedgw. Const. 161 and notes.

*763 The construction given to a statute by those charged .with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons. Edwards v. Darby, 12 Wheat. 210; United States v. The State Bank of North Carolina, 6 Pet. 29; United States v. MacDaniel, 7 id. 1. The officers concerned are usually able men, and masters of the subject. Not unfrequently they are .the draftsmen of the laws they are afterwards called upon to interpret.

The appellee insists that he was- not appointed by the Secretary-of the Navy, because sect. 1369 of the Revised .Statutes requires tha t all appointments in the medical corps shall be. made by the President, by and with, the advice and consent of the Senate.”

It is retorted, in effect, in behalf of the government, that this proposition, if sound, proves too much for the appellee’s case; and that, if there was no appointment by the Secretary, then the appellee could not be a passed assistant-surgeon, because, in addition to the .Secretary’s notification, he was not nominated by the President and confirmed by the Senate.

There is certainly as much foundation for the second theory as for the first one; but- neither is correct. The place has every ingredient of an office, and, as we have seen, the appellee was legally appointed to it. The difficulty has arisen, from the col. lators not having been careful to harmonize the language of the sections. Hence the seeming conflict. But the intention of Congress is clear, and that intention constitutes the law. A thing may be within the letter of a statute,- and not within its meaning; and it may be within the meaning, though not within the letter. Slater v. Cave, 3 Ohio St. 85; 9 Bac. Abr., pp. 244, 247, tit. Statute, I., 5; United States v. Babbit, 1 Black, 55. In cases like'this, the construction should be such that both.-provisions, if possible, may stand. The clause in question was obviously as much intended to have effect as the section, with which it is in seeming conflict. It may well be held to be. an exception, though not so expressed, to the universality of the language of the latter. This obviates the difficulty, harmonizes the- provisions, and gives effect to both. We cannot doubt that the phrases, “after date of appointment” and *764 from such\date,” have reference to the action of the Secretary, and to nothing else.

Judgment reversedI, arid cause remanded with directions to dismiss. the petition, i