CHIEF CONSTRUCTOR IN THE NAVY-GRADE-VACANCY. The resignation of Mr. Washington L. Capps, chief of the Bureau of Construction and Repair in the Navy Department, upon his completion of 30 years' service in the Navy, and his being commissioned, under the provisions of the naval appropriation act of June 24, 1910 (36 Stat. 607, 608), a chief constructor in the Navy, with the rank of rear admiral, did not create a new grade in the construction corps. No vacancy was created thereby in the grade of naval constructor, nor in the total number of naval constructors and assistant constructors provided by law. The office of chief of bureau in the Navy Department is not designated by acts of Congress as a grade. DEPARTMENT OF JUSTICE, SIR: The material facts giving rise to the request for an opinion contained in your letter of the 12th ultimo are stated by you as follows: "From October 31, 1903, to and including September 30, 1910, the Chief of the Bureau of Construction and Repair in this department, with the title of chief constructor, was Washington L. Capps, whose actual position in the Navy was in the grade of naval constructor with the rank of captain on the latter date, and on which date he completed 30 years' service in the Navy. On October 1, 1910, he resigned his office as such chief of bureau, and on the same day, in accordance with the terms of a provision in the naval appropriation act approved June 24, 1910 (36 Stat. 607, 608), he was commissioned a chief constructor in the Navy with the rank of rear admiral, and he still remains on the active list." The provision of the act of June 24, 1910, under which Mr. Capps was commissioned, reads as follows: "The pay and allowances of chiefs of bureaus of the Navy Department shall be the highest shore-duty pay and allowances of the rear admiral of the lower nine; and all officers of the Navy who are now serving or shall hereafter serve as chief of bureau in the Navy Department and are eligible for retirement after 30 years' service, shall have, while on the active list, the rank, title, and emoluments of a chief of bureau, in the same manner as is already provided by statute law for such officers upon retirement by reason of age or length of service, and such officers, after 30 years' service, shall be entitled to and shall receive new commissions in accordance with the rank and title hereby conferred." The questions upon which you desire an expression of my views are stated by you as follows: "1. Does the recent commissioning of Mr. Capps as a chief constructor in the Navy with the rank of rear admiral create a new grade in the construction corps of the Navy? "2. Does the same fact create a vacancy in the grade of naval constructor in the Navy with the rank of captain, and in the total number of naval constructors and assistant naval constructors as provided by law?" Sec Of the eight bureaus among which, under section 419 of the Revised Statutes, "the business of the Department of the Navy shall be distributed in such manner as the Secretary of the Navy shall judge to be expedient and proper," the fifth is "a Bureau of Construction and Repair.' tion 421 requires the chiefs of these bureaus to be "appointed by the President, by and with the advice and consent of the Senate," and they hold their offices for the term of four years. Section 423 provides that— "The Chief of the Bureau of Construction and Repair shall be appointed from the list of officers of the Navy, not below the grade of commander, and shall be a skillful naval constructor." An act of March 3, 1893 (27 Stat. 716), modifies this section by providing that (* * *. any naval constructor having the rank of captain, commander or lieutenant commander shall be eligible as Chief of the Bureau of Construction and Repair." Section 1471 of the Revised Statutes, as amended by section 7 of the navy personnel act of March 3, 1899 (30 Stat. 1005), provides that the Chief of the Bureau of Construction and Repair, when that office is filled by an officer below the "rank" of rear admiral, shall have the "rank" of rear admiral while holding that "position," and shall have the "title" of chief constructor. Sections 1402 and 1403 of the Revised Statutes authorize the President to appoint naval constructors and assistant naval constructors, and section 10 of the navy personnel act, supra, provides: "SEC. 10. That of the naval constructors five shall have the rank of captain, five of commander, and all others that of lieutenant commander or lieutenant. Assistant naval constructors shall have the rank of lieutenant or lieutenant (junior grade). Assistant naval constructors shall be promoted to the grade of naval constructor after not less than eight or more than fourteen years' service as assistant naval constructor: Provided, That the whole number of naval constructors and assistant naval constructors on the active list shall not exceed forty in all." The navy appropriation act of July 1, 1902 (32 Stat. 662, 683), authorizes the appointment of six additional assistant naval constructors, and a further increase of twenty-nine naval constructors and assistant naval constructors is provided for in the appropriation act of March 3, 1903 (32 Stat. 1177, 1197), "in all, seventy-five." As stated in an opinion by one of my predecessors concerning grades in the Navy (16 Op. 414, 416), "grade expresses one of the divisions or degrees in the particular department or branch of the service according to which offices therein are classified or graded," and, as I have heretofore pointed out (27 Op. 376), the office of chief of bureau in the Navy Department is not designated in the acts of Congress as a grade. On the contrary, in section 421 of the Revised Statutes it is called an "office," and in section 1471 a "position;" section 423 originally provided it must be filled by appointment "from the list of officers of the Navy not below the grade of commander;" by section 1471 the Chief of the Bureau of Construction and Repair has the "title" of chief constructor; under the act of March 3, 1899, supra, the incumbent, if an officer below the rank of rear-admiral, has that "rank" while holding the office, and the act of June 24, 1910, provides that the "pay and allowances" of chiefs of bureaus "shall be the highest shore-duty pay and allowances of the rear-admiral of the lower nine." It was therefore held, in my opinion of May 26, 1909 (27 Op. 376, 379), that when an officer of the Navy holding the position of chief of bureau with the title of engineer in chief is retired from active service by reason of disability, and, in pursuance of the provisions of sections 1448-1453 of the Revised Statutes, placed upon the retired list "of officers of the grade" to which he belonged at the time of his retirement, he is not retired as a chief of bureau or engineer in chief, for the reason that "such office is not a grade." The provision of the act of June 24, 1910, applicable to the case of Mr. Capps has been construed in two previous opinions. The first, an informal opinion addressed to you on July 9 last, holds that there is nothing in that act to alter the above-mentioned decision that the office of chief of bureau is not a grade. This opinion, however, was dealing with the retirement of a person who, without having served 30 years, had ceased to be a chief of bureau and returned to general duty for a time before he became eligible for retirement. The other, rendered September 27 last (28 Op. 429), advised you that the "rank, title, and emoluments" conferred by the act are not restricted to the period during which an officer who is eligible for retirement after 30 years' service remains chief of bureau, but continues as long as he is on the active list. In the present case Mr. Capps, while serving as Chief of the Bureau of Construction and Repair, became eligible to retirement after 30 years' service. This entitled him, under the act of June 24, 1910, as construed in the abovementioned opinions, to "the rank, title, and emoluments of a chief of bureau" so long as he remains on the active list, and it appears that he has received the new commission which that act directs in such cases. In order to answer your inquiries, it is necessary to go further than was required by the facts considered in my previous opinions and determine whether, in enacting the statute in question, it was the intention of Congress that the concurrence of all the circumstances just stated as to the case of Mr. Capps should operate to establish a new grade in your department 1 Printed immediately after this opinion. 59515°-VOL 28-12-34 and thus create a vacancy in the grade of naval constructor held by that officer while chief of bureau. Since, as I have previously held, the office of chief of bureau, with the rank, title, and emoluments accompanying it, was not a grade prior to the time when the incumbent became eligible to retirement after 30 years' service, notwithstanding the appointment thereto was by the President with the advice and consent of the Senate, it would seem necessarily to follow that the mere issuance of another commission "in accordance with the rank and title" theretofore conferred and the making permanent of such theretofore temporary rank, title, and emoluments would not have that effect. To hold otherwise and say that the issuance of the new commission created a vacancy in the grade of naval constructor would operate to increase to that extent the naval establishment, although there is no indication of such an intention on the part of Congress in the language of the statute. It is a well-settled rule that "a statute should not be construed as making an appropriation, or authorizing the expenditure of money unless the language is sufficiently explicit to clearly justify it" (18 Op. 174, 176); and, as you say in your letter, "when Congress has seen fit to make increases in the numbers of officers in the Navy, either generally or in particular corps or grades, it has generally used specific and apt language to accomplish that object." Besides, it will be observed from the statutes above quoted that in legislating with respect to naval constructors Congress has been very careful to limit their number. It seems clear therefore that Congress did not intend by the act of 1910 to increase the number of officers in the Navy, and that the sole purpose of the act was to make permanent the rank, title, and emoluments of an officer serving as chief of bureau who had become eligible for retirement by reason of age or length of service, but who preferred to remain upon the active list. For these reasons I answer both your questions in the negative. Respectively, GEORGE W. WICKERSHAM. The SECRETARY OF THE NAVY. |
