Quackenbush v. United States/Opinion of the Court
In Blake v. United States, 103 U.S. 227, 26 L. ed. 462, it was held that the President has power, by and with the advice and consent of the Senate, to displace an officer in the army or navy by the appointment of another person in his place, and that when that has been done he cannot again become an officer except upon a new appointment with like advice and consent. That ruling has been repeatedly affirmed and followed. Keyes v. United States, 109 U.S. 336, 27 L. ed. 954, 3 Sup. Ct. Rep. 202; Mullan v. United States, 140 U.S. 240, 35 L. ed. 489, 11 Sup. Ct. Rep. 788. And see Parsons v. United States, 167 U.S. 324, 42 L. ed. 185, 17 Sup. Ct. Rep. 880.

When through mistake, or misapprehension, or for any other reason, injustice has been done, Congress has the power to accord relief, but the courts cannot of their own motion revise the grounds of action taken in the constitutional exercise of executive power.

Claimant is a commander in the United States Navy on the retired list by virtue of his appointment and retirement under the act of February 16, 1897. This suit was brought to recover pay as on leave or waiting orders from August 1, 1883, to June 1, 1895, when claimant reached the ago of sixty-two years, and pay as a retired officer from June 1, 1895, to May 26, 1897, when he took the prescribed oath on his appointment; and if he is entitled to the amounts sued for, it is by reason of the act, and not otherwise.

The act described claimant in title and context as 'late a commander in the United States Navy;' suspended as to him 'the provisions of law regulating appointments in the Navy by promotion in the line, and limiting the number of commanders to be appointed in the United States Naval service;' and authorized the President to appoint him to the same grade and rank as of the date of August 1, 1883, and to place him on the retired list as of the date of June 1, 1895.

Congress thereby declared that claimant had been prior to August 1, 1883, but was not then, a commander, and that, in order to enable him to be appointed to that grade and rank, it was necessary to suspend the act of August 5, 1882, which limited the number of commanders on the active list, and also forbade promotion or increase of pay in the retired list. 22 Stat. at L. 284, chap. 391.

If the act had contained nothing more, the effect of the appointment would have been, in addition to fixing claimant's status as to grade and rank as of August 1, 1883, to entitle him to pay from that date, but not to pay prior thereto, as by the terms of the act he was not a commander until appointed thereunder. The act did not stop there, however, but a proviso was added which read: 'Provided, That he shall receive no pay or emoluments except from the date of such reappointment.'

Provisos are commonly used to limit, restrain, or otherwise modify the language of the enacting clause, and that was the manifest purpose of this proviso. But it was not needed to limit the effect of the act prior to August 1, 1883, or to enlarge its effect after that date. Its only apparent office was to forbid the allowance of pay or emoluments from August 1, 1883, by limiting such allowance to 'the date of such reappointment,' which in that view must be regarded as the date of appointment under the act.

This result is in harmony with the language used. Claimant had been a commander and had ceased to be such. He was again appointed, and that second appointment was a reappointment. The date of that reappointment was certainly when it was actually made, and to substitute the date to which the appointment related for the actual date would defeat the obvious object of the proviso, which was to narrow the effect of giving the reappointment a retroactive operation. It was allowed that effect as to grade and rank, but not as to current pay or emoluments between August 1, 1883, and the date of the reappointment. This fixed his relative position with reference to other officers in matters of privilege and precedence, and of command if detailed to active service in time of war. At the same time, by referring the appointment to the prior date the retired pay was sensibly affected. If claimant had been appointed without any such reference and had been immediately retired, he would have been entitled to only one half the sea pay of a commander under § 1588 of the Revised Statutes, for he would not have reached the age of sixty-two years while in the service; but as he was appointed as of August 1, 1883, he was put constructively in the service from that date and so, on being retired, became entitled to three quarters of such sea pay; and this he is receiving.

Something was said in argument in respect of the commission, which is not set out in the findings, but whatever its terms, the conclusion remains unaffected. The appointment and the commission are distinct acts, and the terms of the commission cannot change the effect of the appointment as defined by the statute.

Assuming claimant to have been lawfully out of the service June, 1874, the government preferred a counterclaim for the pay received by him from then to March 31, 1881. But the act of February 16, 1897, was remedial in its character, and although we cannot for that reason give to its terms any other than their obvious meaning, we think it should be construed as ratifying these prior payments.

Congress had all the facts before it and intended to award some measure of relief in view of the circumstances. It went so far and no farther, but it went far enough to enable us to hold that it would be inconsistent with the object of the act to sustain any recovery back.

In short we agree with the court of claims in its conclusions on both branches of the case.

Judgment affirmed. 

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