Opinion of the Court.

Auditor of the Treasury, May 28, 1830, which was transmitted to Congress, Ib., Vol. 3, p. 685, the latter being accompanied by a table showing every kind of allowance made under the regulations and orders of the Navy Department. The same facts are disclosed by the report of Amos Kendall, the Fourth Auditor of the Treasury, February 5, 1835, to the Secretary of the Navy, and transmitted by the latter to the House of Representatives in conformity with a resolution of that body. The latter report embodies a statement, in detail, showing the regular pay, rations, and allowances of all commissioned officers of the navy according to the laws and regulations then in force. Ex. Doc. 192, II. R. Navy Department 23d Congress, 2d Session.

Thus matters stood until the passage of the act of March 3, 1835, 4 Stat. 753, regulating (and increasing) the pay of the navy, by which allowances of every description were prohibited. The second section of that act provided that "no allowance shall hereafter be made to any officer in the naval service of the United States for drawing bills, for recovering or disbursing money, or transacting any business for the government of the United States, nor shall he be allowed servants, or pay for servants, or clothing or rations for them, or pay for the same; nor shall any allowance be made to him for rent of quarters, or to pay rent for furniture, or for lights, or fuels, or transporting baggage. It is hereby expressly declared that the yearly allowance provided in this act is all the pay, compensation, and allowance that shall be received under any circumstances whatever by any such officer or person, except for travelling expenses when under orders, for which ten cents per mile shall be allowed." 4 Stat. 757.

This prohibition of allowances continued in force until the act of April 17, 1866, making appropriations for the naval service. The second section of that act provided "that so much of the second section of an act entitled 'An act to regulate the pay of the navy of the United States,' approved March three, 1835, as prohibits any allowance to any officer in the naval service for rent of quarters, or for furniture, or for lights, or fuel, or transporting baggage, and all acts or parts

Opinion of the Court.

of acts authorizing the appointment of navy agents, be, and the same are hereby, repealed." 14 Stat. 33, 38, c. 45.

After the passage of that act Secretary Welles issued the order which the government now assails as unauthorized by law. It is as follows:

"[General Order No. 75.]

"NAVY DEPARTMENT, May 23, 1866. "Congress having, in view of the call for increased compensation for officers of the navy, repealed the law which prohibited any allowance to them for rent of quarters or to pay rent for furniture, or for lights and fuel, &c.,' the Department, in order to prevent a recurrence of the irregularities, abuses, and arbitrary allowances which occasioned the prohibition, deems it proper to establish a fixed rate of compensation in lieu of the extra allowances which were prohibited by the law now repealed. Accordingly, from and after the first day of June proximo, officers who are not provided with quarters on shore stations, will be allowed a sum equal to thirty-three and one-third per centum of their pay in lieu of all allowances, except for mileage or travelling expenses under orders; and those provided with such quarters, twenty per centum of their pay in lieu of said allowances.

"The act of March 3, 1865, having increased the pay of midshipmen and mates, the allowances hereby authorized will not be extended to them.

"GIDEON WELLES,

"Secretary of the Navy."

This order was, no doubt, issued in the belief that the legal effect of the repeal of that part of the act forbidding allowances "for rent of quarters, or for furniture, or for lights, or fuel, or transporting baggage," was to reinvest the Department with the authority it had prior to the act of 1835. That act, upon its face, recognized the fact that such allowances had theretofore been made, and its object was to forbid them in the future. When the act of 1866 simply removed the prohibition contained in the act of 1835, the effect was, without formal

Opinion of the Court.

words for that purpose, to restore the law as it was before the passage of the latter act. Such is the rule where the effect of the repealing statute is not by its own terms, or by some general statute, limited to the abrogation of the act repealed. 1 Blackstone, 90; 1 Kent, 460; Bouvier's Bacon's Abridg ment, Title Statute, D; Commonwealth v. Churchill, 2 Met. 118; Van Denburgh v. Village of Greenbush, 66 N. Y. 1. The general rule was never modified by Congress until the passage of the act of February 25, 1871, now § 12 of the Revised Statutes, which declared 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." 16 Stat. 431, c. 71. It is scarcely necessary to say that the act of 1871 cannot control the present case, for the order of Secretary Welles, and the settlement under it with Philbrick, both occurred before its passage. And for the same reason, this case is unaffected by the 4th section of the act of July 15, 1870, (now § 1558 Rev. Stat.,) which provides that the pay prescribed therein for officers of the navy, shall be their full and entire compensation, and that (with certain exceptions. not material to be here noticed) "no additional allowance shall be made in favor of any of said officers on any account whatever, and all laws or parts of laws authorizing any such allowances shall, on 1st of July, 1870, be repealed." 16 Stat. 332, č. 295.

Notwithstanding the order of Secretary Welles was in harmony with the long-established practice of the Navy Department for many years prior to the passage of the act of 1835, it is contended that such a practice never has had support in an act of Congress; and that, without legislative sanction, the Secretary of the Navy was without authority to establish an arbitrary rule for the distribution of moneys appropriated in gross for specified objects connected with the naval service, and could, in no event, make allowances beyond the actual cost incurred by the officer in whose behalf they were made. It is a sufficient answer to these propositions to say that the power of the Secretary to establish rules and regulations for the apportionment of the sums set apart by Congress, in gross,

Opinion of the Court.

for such objects as those involved in the allowances here in dispute, having been frequently exercised prior to 1835, without objection by the legislative branch of the government; and since that act, as well as the one of 1866, is an implied recognition of the practice established in the Navy Department prior to 1835, we are not disposed, at this late day, to question the validity of the order of May 23, 1866. That order was in accordance with the construction which the Executive Department, for many years prior to 1835, placed upon the various statutes relating to the naval establishment and defining the powers of the Secretary of the Navy. A contemporaneous construction by the officers upon whom was imposed the duty of executing those statutes is entitled to great weight; and since it is not clear that that construction was erroneous, it ought not now to be overturned. See Hahn v. United States, 107 U. S. 405, and Brown v. United States, 113 U. S. 571, and authorities cited in each case.

As these views lead to an affirmance of the judgment, it is unnecessary to consider whether, after the account of the appellee for commutation of quarters, furniture, lights, and fuel, between November 12, 1869, and June 30, 1870, had been finally stated and closed, and after he had been paid the amount allowed him, the Second Comptroller had authority to open it upon the ground of error therein arising from mere mistake of law. Nor need we determine whether errors in accounts so stated, closed and settled by payment, could be corrected otherwise than by regular judicial proceedings instituted for that purpose by the United States against the appellee.

Judgment affirmed.

Opinion of the Court.

UNITED STATES v. ROCKWELL.

APPEAL FROM THE COURT OF CLAIMS.

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

Under that clause in the act of March 3, 1883, 22 Stat. 473, which provides for crediting an officer of the navy with his time of service in the regular or volunteer army or navy, or both, in the same manner as if all the service "had been continuous, and in the regular Navy in the lowest grade, having graduated pay held by" him "since last entering the service,” officers are entitled to be credited as of the lowest grade with graduated pay held by them after reëntering the service, and not as of a still lower grade in which they may actually have served, but to which no graduated pay was attached when the act of July 15, 1870, took effect.

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 appellees. MR. JUSTICE HARLAN delivered the opinion of the court.

The appellee Rockwell served in the volunteer Navy as acting master from July 15, 1862, to December 16, 1862; as lieutenant from December 16, 1862, to April 29, 1865; as lieutenant-commander from April 29, 1865, to December 8, 1865, when he was honorably discharged; and as acting master from November 19, 1866, to March 12, 1868; in the regular Navy, as master from March 12, 1868, to December 18, 1868; as lieutenant from December 18, 1868, to February 26, 1878; and as lieutenant-commander from February 26, 1878, to March 3, 1883. He was paid for his services in those several positions in accordance with the laws in force at the time they were performed. But he claims, in this action, additional pay under the act of March 3, 1883, making appropriations for the naval service for the year ending June 30, 1884. 22 Stat. 472, 473, c. 97. He obtained judgment, and upon this appeal the government questions the construction placed by the court below upon that act.