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Opinion of the Court.

alone or by direction of the President, the power to declare a particular service to be shore service if, in fact, it was performed by the officer "when at sea," under the orders of the Department and on a vessel employed with authority of law? By the navy regulations of 1876, it was declared that "duty on board a sea-going vessel of the Navy in commission, on board a practice ship at sea, or on board a coast-survey vessel actually employed at sea, will be regarded by the Department as sea service." p. 85. Assuming that the first clause of that regulation contemplates services at sea under the orders of the Department, in a vessel employed with authority of law, it is clear that all the different kinds of services described therein are services performed at sea in the meaning of § 1556. But they are to be deemed such, not because the Secretary of the Navy has announced that the Department will so regard them, but because they are, in fact, services performed at sea, and nct on shore. If the regulations of 1876 had not recognized services "on board a practice ship at sea" as sea services, the argument in behalf of the government would imply that they could not be regarded by the courts, or by the proper accounting officers, as sea services; in other words, that the Secretary of the Navy could fix, by order, and conclusively, what was and what was not sea service. But Congress certainly did not intend to confer authority upon the Secretary of the Navy to diminish an officer's compensation, as established by law, by declaring that to be shore service which was, in fact, sea service, or to increase his compensation by declaring that to be sea service which was, in fact, shore service. The authority of the Secretary to issue orders, regulations, and instructions, with the approval of the President, in reference to matters connected with the naval establishment, is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the navy. He may, with the approval of the President, establish regulations in execution of, or supplementary to, but not in conflict with, the statutes defining his powers or conferring rights upon others. The contrary has never been held by this court. What we now say is entirely consistent with

VOL. CXX-4

Opinion of the Court.

Gratiot v. United States, 4 How. 80, and Ex parte Reed, 100 U. S. 13, upon which the government relies. Referring in the first case to certain army regulations, and in the other to certain navy regulations, which had been approved by Congress, the court observed that they had the force of law. See also Smith v. Whitney, 116 U. S. 181. In neither case, however, was it held that such regulations, when in conflict with the acts of Congress, could be upheld. If the services of Symonds were, in the meaning of the statute, performed "at sea," his right to the compensation established by law for sea service is as absolute as is the right of any other officer to his salary as established by law. The same observations may be made in reference to the order of the Secretary of the Navy of July 7, 1882, which—without modifying the previous order that Symonds should perform the duties of executive officer of the New Hampshire-declared that that ship would not be considered as in commission for sea service after August 1, 1882. It does not appear that the Secretary had any purpose, by his order, to affect the pay of the officers of the ship as fixed by the statute. Other reasons doubtless suggested the propriety or necessity of its being issued. But his order is relied upon here as depriving Symonds of the right to seapay after the date last named. For the reasons stated, that order could not convert the services of Symonds from sea services into shore services, if they were, in fact, performed when "at sea."

We concur in the conclusion reached by the Court of Claims, namely, that the sea-pay given in § 1556 may be earned by services performed under the orders of the Navy Department in a vessel employed, with authority of law, in active service in bays, inlets, roadsteads, or other arms of the sea, under the general restrictions, regulations, and requirements that are incident or peculiar to service on the high sea. It is of no consequence, in this case, that the New Hampshire was not, during the period in question, in such condition that she could be safely taken out to sea beyond the main land. She was a training-ship, anchored in Narragansett Bay during the whole time covered by the claim of appellee, and was subject to such

Opinion of the Court.

regulations as would have been enforced had she been put in order and used for purposes of cruising, or as a practice ship Within the meaning of the law, Symonds, when performing his duties as executive officer of the New Hampshire, was "at sea."

at sea.

Judgment affirmed.

UNITED STATES v. BISHOP.

APPEAL FROM THE COURT OF CLAIMS.

Submitted December 6, 1886. Decided January 10, 1887.

This case is affirmed on the authority of United States v. Symonds, just decided (ante, 46).

THE case is stated in the opinion of the court.

Mr. Attorney General and Mr. F. P. Dewees for appellant. Mr. John Paul Jones and Mr. Robert B. Lines for appellee. MR. JUSTICE HARLAN delivered the opinion of the court.

This case does not differ in principle from that of United States v. Symonds, just decided.

Bishop is now, and has been for more than four years, a lieutenant-commander in the navy. By direction of the Secretary of the Navy, he assumed the duties of executive officer of the training-ship Minnesota, on the 18th of April, 1884. During the period of such service that vessel was stationed in New York harbor, cruising and moving about under her own power. Her machinery and equipment were kept in order, and she was perfectly seaworthy, capable, upon short notice, of being used in a protracted cruise.

The duties of Bishop, while such executive officer, were more arduous and confining than those of officers of similar grade upon vessels in foreign waters.

Syllabus.

For the reasons given in United States v. Symonds, we are of opinion that the services of appellee were, within the meaning of § 1556 of the Revised Statutes, performed "at sea," and, consequently, it was rightly adjudged in the court below that he was entitled to sea-pay, as established for officers of his grade, during the period of his service on the Minnesota.

Judgment affirmed.

UNITED STATES v. PHILBRICK.

APPEAL FROM THE COURT OF CLAIMS.

Submitted December 6, 1886. - Decided January 10, 1887.

Prior to the enactment in the act of February 25, 1871, 16 Stat. 431, now Rev. Stat. § 12, that "whenever an act is repealed, which repealed a former act, such former act shall not thereby be revived unless it shall be expressly so provided," it was the general rule of law that the repeal of a repealing act restored the law as it was before the passage of the latter act without formal words for that purpose, unless otherwise provided either in the repealing act or by some general statute. Before the passage of the act of March 3, 1835, forbidding it, 4 Stat. 757, it was lawful for the Secretary of the Navy to make allowances out of appropriations in gross to officers of the Navy beyond their regular pay, for quarters, furniture, lights, fuel, &c., and the repeal of that act by the act of April 17, 1866, 14 Stat. 33, restored the right to make such allowances; and such as were made by him and were settled at the Treasury Department, between the date when the latter act went into effect and the passage of the act of February 25, 1871, 16 Stat. 431, were made in accordance with the executive construction of the statutes respecting the navy and the Navy Department prior to 1835, and this court will not at this late day question their validity.

The contemporaneous construction of a statute by the Executive Department charged with its execution is entitled to great weight, and ought not to be overturned unless clearly erroneous.

It is not decided (1) whether after settlement of an account at the Treasury it can be reopened by the accounting officers on the ground of error arising only from mistake of law; nor (2) whether errors in accounts with the United States, stated closed and settled by payment, can be corrected otherwise than by regular judicial proceedings instituted by the United States.

Opinion of the Court.

THE case is stated in the opinion of the court.

Mr. Attorney General and Mr. F. P. Dewees for appellant. Mr. John Paul Jones and Mr. Robert B. Lines for appellee. MR. JUSTICE HARLAN delivered the opinion of the court.

The appellee, Philbrick, having served as a carpenter in the navy from July 8, 1861, to March 14, 1866, and again continuously after November 12, 1869, filed with the Fourth Auditor of the Treasury his claim for the benefits of the act of Congress of March 3, 1883, providing, among other things, that "all officers of the navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer army or navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous, and in the regular navy, in the lowest grade having graduated pay held by such officer since last entering the service." 22 Stat. 473. The claim having been passed by the Fourth Auditor, was forwarded to the Second Comptroller of the Treasury, who is the reviewing officer charged with the examination of all accounts of this class. The latter officer, while recognizing that the appellee had a valid claim under the act of 1883, deducted from the amount which the Fourth Auditor had ascertained to be due the sum of $214.88. That amount was made up of two items, $169.50 and $45.38.

In respect to the item of $169.50 which is the only one disputed on this appeal the Second Comptroller held that that sum had, by mistake of law, been improperly allowed and paid to appellee for commutation of quarters, furniture, lights, and fuel from November 12, 1869, to July 1, 1870, although such payment was in conformity with a general order, issued by the Secretary of the Navy on the 12th of May, 1866, in reference to allowances to officers in that branch of the public service.

It is, however, insisted, on behalf of the United States, that

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