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hat the footsteps of the surveyor must be followed, and that the lines and corners must be located where he established them, was unnecessary, inasmuch as the court did charge substantially to that effect. The court expressly said: "Our purpose and your duty is to follow the tracks of the surveyor, so far as we can discover them on the ground with reasonable certainty, and where he cannot be tracked on the ground, we have to follow the course and distance he gives, so far as not in conflict with the tracks we can find that he made." We do not well see how it could be more plainly stated that the main object to be reached by the whole inquiry was to ascertain and follow the actual footsteps of the surveyor.
The final request was, in substance, a request to charge that if the jury believed from the evidence that the survey was actually made on the ground according to the first and second courses and distances they must find for the defendant. As there appears to have been no doubt from the evidence that if the lines were so run the second line, that is, the north or back line, would take in the greater part of the lot claimed by the plaintiff, the request would have been a proper one had it been qualified with the condition that the two hackberry trees were not satisfactorily identified as those called for in the Moreno grant. But without being so qualified the proposed instruction would have had a tendency to withdraw the minds of the jury from the controlling effect which the identification of those trees as the true north-east corner would properly have had on the conclusion to be reached by the jury as to the question whether the two lines referred to were, or were not, run and measured according to the field-notes. For it is perfectly clear that they could not have been so run and measured if the two hackberry trees mentioned in the fieldnotes were the same as those relied on by the plaintiff. The request, therefore, should have been, that if the jury did not believe the hackberries were the same, then, if they believed that the two lines were run according to the field-notes, they must find for the defendant.
It still remains to consider the correctness of that part of the charge given which was excepted to by the defendants. The substance and effect of it was that if the jury were not able to fix the disputed lines, or the disputed portions of the lines, with reasonable certainty, they might locate the back or northerly line so as to embrace 11 leagues between it and the river, and between the east and west lines as acknowledged by the parties. This was allowing the jury to make the location of the back line depend on the quantity of the land inclosed, if they could not fix it from the evidence. In this we think there was error in the charge. The whole context immediately connected with the passage excepted to, was in substance this: that if the testimony satisfied the jury that the two hackberries discovered were identical with those called for in the grant, the back or north line must start from, or end with, them, running in a course north 70 deg. west, or south 70 deg. east; but that if the testimony did not satisfy them as to the identity of the trees, then they must fix the unmarked or disputed lines so as most nearly to harmonize the calls with the known corners and the undisputed line, (that is, the east line.) If the jury were not able to fix the disputed lines, or the disputed portions of lines, then they might resort to quantity; that is, locate the back line between the two recognized side lines so as to take in 11 leagues.
Now, it seems to us that the jury should have been told that if the testimony was not sufficient to identify the two hackberries with those called for in the grant, and could not fix the north-east corner nor the back line by any other marks or monuments, then they should fix it by the courses and distances of the first and second lines of the survey, except that the second line should be extended so as to meet the recognized east line as marked and extended beyond the hackberries. This would have been in accordance with the rule that course controls distance, and that course and distance control quan
tity, which is correctly laid down in Stafford v. King, 30 Tex. 257, and Welder v. Hunt, 34 Tex. 44.
The statement in the first part of the charge, that the jury should follow the tracks of the surveyor, so far as they could be discovered, and when these were not to be found, they should follow the course and distance which he gives, so far as not in conflict with tracks that are found, was correct. Had this proposition been followed in the subsequent part of the charge, it would not have been open to criticism. But when directions were given to the jury in greater detail, they were not referred to the courses and distances given by the surveyor, in case they were unable to identify his tracks, (that is, in case the proof relating to the two hackberries was insufficient,) but they were told thus: "You will, from the whole proof, so fix the unmarked or disputed lines called for in the grant as in your judgment most nearly harmonizes the calls with the known corners and the undisputed lines;" and if not able to fix these lines in this way, then to resort to the rule of quantity. This was putting the matter as if it depended on the judgment of the jury whether the lines could be run according to the survey; whereas, if not compelled by fixed monuments (such as the plaintiff claimed the hackberry trees to be) to run the second, or back line, in a particular manner, there was nothing in the way, so far as the evidence showed, of running the first and second lines according to the field notes,-only extending the second line so as to meet the east line, the position of which was known. If the north-east corner was not determined by the hackberries, there was nothing to interfere with the location of the Moreno grant in exact accordance with the field-notes, except the one thing of extending the second line far enough to meet the conceded location of the eastern boundary. It did not depend on anything requiring the exercise of judgment on the part of the jury; it was a matter of course. If the position of the eastern line had not been discovered at all, and nothing had been known but the beginning corner, the field-notes would have furnished the only guide for locating the survey. The position of that line being known, it controlled the survey only in respect to that line, which required the second line to be extended sufficiently to reach it. But if the two hackberry trees, in that line, were also identified as the true north-east corner, then the position of the north line, and the length of the first course, would be controlled by those trees.
We think there was error in not putting it to the jury with sufficient distinctness that the course and distance of the first two lines of the survey must govern, if the evidence was not sufficient to fix the location of the northern line by identifying the two hackberries with those called for in the fieldnotes for the north-east corner of the survey, or by some other marks or monuments.
The judgment must be reversed, with directions to grant a new trial.
(113 U. S. 568)
BROWN, Adm'x, etc., v. UNITED STATES.
(October Term, 1884.)
1. CONSTRUCTION OF A STATUTE-CONTEMPORANEOUS INTERPRETATION.
The contemporaneous and uniform interpretation is entitled to weight in the construction of a law, and in a case of doubt ought to turn the scale.
2. RETIREMENT OF NAVAL OFFICERS-WARRANT OFFICERS-ACT OF AUgust 3, 1861. Section 23 of the act of August 3, 1861, relative to the pay of officers of the navy upon their being retired, did not apply to warrant officers.
3. SAME SECTION 5, ACT OF JULY 15, 1870.
Section 5 of the act of July 15, 1870, in providing for the pay of retired officers, applies, in both its terms and meaning, only to officers on the retired list, and not to the compensation of officers retired on furlough pay, and did not abolish the furlough pay-list.
4. SAME-EVIDENCE-INCAPACITY-INCIDENT OF SERVICE-REPORT OF BOARD. As it is incumbent on the officer whose case comes before a retiring board to show, in order to secure a report that will place him on the retired list rather than on the retired list with furlough pay, that his incapacity was the result of some incident of the service, the report of the board that there was no evidence to support such a finding is, to all intents and purposes, a report that the incapacity was not the result of an incident of the service, and justifies an order retiring the officer on furlough pay.
5. SAME-ACQUIESCENCE OF RETIRED OFFICER DURING LIFE COMMITS HIS REPRESENTATIVES AFTER HIS DEATH.
After a retired officer has, during the remainder of his life, acquiesced in the proceedings of the retiring board, it does not lie with his administratrix to object to them even for a substantial defect, much less for a mere irregularity.
6. LONGEVITY PAY.
Thornley v. U. S., ante, 491, followed.
Appeal from the Court of Claims.
John Paul Jones and Robert B. Lines, for appellant. Sol. Gen. Phillips, for appellee.
WOODS, J. James Brown, the intestate of the appellant, was a boatswain in the United States navy. The petition in this case was filed against the United States by the administratrix of his estate in *the court of claims to recover a balance of pay which she alleged was due to Brown at his death. The court of claims found the following facts: Brown, the decedent, was appointed a boatswain in the navy of the United States, January 4, 1862. On October 22, 1872, the naval retiring board, before which he had been ordered by the secretary of the navy under the provisions of section 23 of the act of August 3, 1861, (12 St. 291,) reported that he was incapacitated from performing the duties of his office, and that there was no evidence that such incapacity was the result of any incident of the service. He was accordingly, upon the day last mentioned, by order of the president, retired on furlough pay. From October 22, 1872, to June 30, 1875, Brown received pay at the rate of $900 per annum; and from July 1, 1875, to June 6, 1879, at the rate of $500 per annum. On the day last named he died. The court further found that the acts of August 3, 1861, (12 St. 290,) and of December 21, 1861, (12 St. 329,) were soon after their enactment construed by the president and navy department to include warrant officers, and under that construction it had been the uniform practice of the president to place warrant officers on the retired list, and large numbers of these officers had been so retired. No protest or objection was made by Brown during his life-time, either to his retirement or rate of pay. The accounting officers of the treasury had uniformly held that longevity pay to retired officers was not authorized by section 1593 of the Revised Statutes.
From these findings of fact the court of claims deduced, as a conclusion of law, that Brown was legally placed on the retired list, and had received the full amount of pay allowed him by law, and was not entitled to recover, and entered judgment dismissing the petition. The appeal of the petitioner brings that judgment under review.
*It is not denied that up to July 1, 1875, Brown received all the pay to which he was entitled. The first contention of the appellant is that the placing of Brown on the retired list was unauthorized by law, and that he was therefore entitled to the full pay of a boatswain from July 1, 1875, up to the time of his death. Section 23 of the act of August 3, 1861, (12 St. 291,) by authority of which the president assumed to retire Brown, reads as follows: "That whenever any officer of the navy, on being ordered to perform the duties appropriate to his commission, shall report himself unable to comply with such order, or whenever, in the judgment of the president of the United States, an officer of the navy shall be in any way incapacitated from performing the duties of his office, the president, at his discretion, shall direct the secretary of the navy to refer the case of such officer to a board.
The board, whenever it finds an officer incapacitated for active service, will report whether, in its judgment, the incapacity result from long and faithful service, from wounds or injuries received in the line of duty, from sickness or exposure therein, or from any other incident of the service; if so, and the president approve of such judgment, the disabled officer shall thereupon be placed upon the list of retired officers according to the provisions of this act. But if such disability or incompetency proceed from other causes, and the president concur in opinion with the board, the officer may be retired upon furlough pay, or he shall be wholly retired from the service with one year's pay, at the discretion of the president, and in this last case his name shall be wholly omitted from the navy register. * * *""
The appellant asserts that this section applies only to commissioned officers and not to warrant officers, to which latter class Brown belonged. It must be conceded that were the question a new one the true construction of the section would be open to doubt. But the findings of the court of claims show that soon after the enactment of the act the president and the navy department construed the section to include warrant as well as commissioned officers, and that they have since that time uniformly adhered to that construction, and that under its provisions large numbers of warrant officers have been retired. This contemporaneous and uniform interpretation is entitled to weight in the construction of the law, and in a case of doubt ought to turn the scale.
In Edwards v. Darby, 12 Wheat. 206, it was said by this court that "in the construction of a doubtful and ambiguous law the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to great respect." This case is cited upon this point with approval in Atkins v. Disintegrating Co. 18 Wall. 301; Smythe v. Fiske, 23 Wall. 382; U. S. v. Pugh, 99 U. S. 265; and in U. S. v. Moore, 95 U. S. 763. In the case last mentioned the court said that "the construction given to a statute by those charged with the duty of executing it ought not to be overruled without cogent reasons. The officers concerned are usually able men and masters of the subject. Not unfrequently they are the draughtsmen of the laws they are afterwards called upon to interpret." And in the case of U. S. v. Pugh the court said: "While, therefore, the question," the construction of the abandoned and captured property act, "is one by no means free from doubt, we are not inclined to interfere at this late day with a rule which has been acted on by the court of claims and the executive for so long a time." See, also, U. S. v. State Bank of N. C. 6 Pet. 29; U. S. v. Alexander, 12 Wall. 177; Peabody v. Stark, 16 Wall. 240; Hahn v. U. S. 107 U. S. 402; S. C. 2 SUP. CT. REP. 494. These authorities justify us in adhering to the construction of the law under consideration, adopted by the executive department of the government, and are conclusive against the contention of appellant, that section 23 of the act of August 3, 1861, did not apply to warrant officers.
The appellant next contends that the retirement of Brown was illegal, because, at the time of his retirement, no officer could be placed on the retired list for disability not originating in the line of duty. The theory of this contention seems to be this: The statute required that all officers retired for disability or incompetency not resulting from long and faithful service, or wounds or injuries received in the line of duty, or from sickness or exposure therein, should be retired on furlough pay; and, as sections 3, 5, and 19 of the naval appropriation act of July 15, 1870, (16 St. 321,) abolished the furlough pay-list, the president was only authorized to retire Brown wholly from the service with one year's pay. We think it is clear that the sections of the statute referred to were not intended to abolish the furlough pay-list. So far as they refer to retired officers they apply to the retired list, and not the retired list on furlough pay. For 30 years the legislation of congress has divided
retired naval officers into two classes. By section 2 of the act of February 28, 1855, (10 St. 616,) the officers on the retired, or, as it was then designated, reserved list, were divided into those entitled to receive leave of absence pay, and those entitled to receive furlough pay. The distinction between the two classes of retired officers has been preserved down to the present time. Thus, in section 3 of the act of January 16, 1857, (11 St. 154,) it was provided that the president should be authorized to transfer any officer from the furlough to the reserved pay-list. By section 23 of the act of August 3, 1861, (12 St. 290, 291,) by virtue of which Brown was retired, it was provided that officers incapacitated for active service from long service, wounds, etc., should be placed on the list of retired officers, but those incapacitated from other causes should be retired upon furlough pay. So, by section 2 of the act approved July 28, 1866, (14 St. 345,) it was provided that the rate of pay of officers of the navy on the retired list and not on duty, nor retired on furlough pay, should be one-half the pay to which such officers would be entitled if on duty at sea.
This legislation has been reproduced in the Revised Statutes, where the distinction between officers on the retired list and officers on the retired list on furlough pay is preserved. Thus, sections 1588 and 1592 prescribe one rate of pay for retired officers, and section 1593 a different rate for officers on the retired list on furlough pay, and section 1594 authorizes the president, by and with the advice and consent of the senate, to transfer any officer of the navy on the retired list from the furlough to the retired pay-list. It is plain, ❤ therefore, that section 5 of the act of July 15, 1870, relied on by appellant, and which is the only one which refers to the pay of retired officers, applies in both its terms and meaning only to the pay of officers on the retired list, and not to the compensation of officers retired on furlough pay, to which class Brown belonged, and did not abolish the furlough pay-list. The order of the president retiring Brown on furlough pay was, therefore, made strictly in accordance with the provisions of the statute then and still in force.
It is next objected that the order of the president retiring Brown was illegal and void, because the retiring board having reported him incapacitated, did not find and report what was the cause of his incapacity, but only that there was no evidence that it was the result of any incident of the service. But as it is incumbent on the officer whose case comes before a retiring board to show, in order to secure a report which will entitle him to be placed on the retired list rather than on the retired list on furlough pay, that his incapacity was the result of some incident of the service, the report of the board that there was no evidence to support such a finding is to all intents and purposes a report that the incapacity was not the result of an incident of the service, and justifies an order retiring the officer on furlough pay. But if there had been any irregularity or defect in the report of the board it was the duty of Brown to object to it without unreasonable delay. After his acquiescence in the proceedings during the remainder of his life, it does not lie with his administratrix to object to them, even for a substantial defect, much less for such an irregularity, if it be an irregularity, as is set up in this case. Our opinion is, therefore, that the order of the president retiring Brown was authorized by law, and was regular and valid.
Appellant next insists that, conceding the retirement of Brown to be valid, he did not receive, after July 1, 1875, the pay to which he was entitled. It is contended, first, that he should have been paid according to the provisions of section 5 of the act of July 15, 1870, (16 St. 333,) now forming the last. clause in section 1588 of the Revised Statutes. This enactment provides that officers on the retired list shall receive one-half the sea-pay*allowed to the grade or rank which they held at the date of their retirement. But we have seen that Brown did not belong to the general list of retired officers, but to a distinct class, namely, officers retired on furlough pay. His case,