Opinion of the Court.

the retired list of the navy shall be employed on active duty except in time of war."

The same section of that act contains the following provision:

"That those officers on the retired list, and those hereafter retired, who were, or who may be, retired after forty years' service, or on attaining the age of sixty-two years, in conformity with section one of the act of December, eighteen hundred and sixty-one, and its amendments, dated June twenty-fifth, eighteen hundred and sixty-four, or those who were or may be retired from incapacity resulting from long and faithful service, from wounds or injuries received in the line of duty, from sickness or exposure therein, shall, after the passage of this act, be entitled to seventy-five per centum. of the present sea pay of the grade or rank which they held at the time of their retirement."

From the time Professor Roget was relieved from duty until November 9, 1887, when he died, he was paid at the rate of $1800 a year.

It was contended by the claimant that under the naval appropriation act, approved March 3, 1883, 22 Stat. 472, c. 97, her testator should have been credited with the time of his active service, from May 21, 1864, to March 3, 1873, and should have received the difference between the pay of a retired professor of mathematics who has been retired within his first five years of service, and the pay of such officer who has been retired within his second five years, or $225 per annum, from July 1, 1873, to the date of his death, being 14 years and 122 days. She therefore asked for a judgment against the United States in the sum of $3200. The Court of Claims, in dismissing the petition, decided that "an officer in the navy who was retired in the first five years of service from a rank having longevity pay, but who was continued on active duty until he had passed into his second five years of service, is not entitled, under the act of March 3, 1883, to a greater rate of pay after active service ceased than seventyfive per centum of the pay of the grade or rank which he held at the time of retirement." 24 C. Cl. 165.

Opinion of the Court.

The portion of the act of March 3, 1883, relied upon by the claimant is as follows:

"And 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: Provided, That nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers: Provided further, That nothing herein contained shall be so construed as to give any additional pay to any such officer during the time of his service in the volunteer army or navy."

Prior to the approval of the act containing the foregoing provisions there had been three statutes operating to affect the pay of professors of mathematics retired at the age of sixty-two years, namely, the said acts of 1861, 1870 and 1873. The first gave authority for the assignment of any retired officer to shore duty, and provided that such officer thus assigned should receive the full shore pay of his grade while so employed; the second provided for longevity pay for officers on the active list, including professors of mathematics: and the third fixed the pay of officers so retired at seventy-five per centum of the sea pay of the grade or rank which they held at the time of their retirement. The precise effect of these acts may be readily seen by a brief examination of certain terms employed in them. By the act of March 3, 1835, (4 Stat. 756,) professors of mathematics were regarded as being subject to sea duty, the language used in fixing their pay being as follows: "When attached to vessels for sea service, or in a yard, one thousand two hundred dollars." They are so regarded also by the act of August 31, 1842, (5 Stat. 576, c. 276,) which provides that they "shall be entitled to live and mess with the lieutenants of seagoing and receiving vessels ;" and by the act of August 3, 1848, § 12, (9 Stat. c. 121, pp. 266, 272,) providing that they "shall perform such duties as

Opinion of the Court.

may be assigned them by order of the Secretary of the Navy, at the Naval School, the Observatory, and on board ships of war, in instructing the midshipmen of the navy, or otherwise." Though the act of June 1, 1860, sec. 3, (12 Stat. 23, 27, c. 67,) declares that "no service shall be regarded as sea service but such as shall be performed at sea under the orders of a department, and in vessels employed by authority of law," the same statute, as well as others, in fixing the pay of professors of mathematics, provided for but one rate of pay for such officers while on duty. It may, therefore, be considered that a professor of mathematics assigned after his retirement to shore duty would be entitled to the highest pay of his grade while so employed, which would be as well his sea pay as his shore pay. The grade of an officer in the navy is his official station, by which are regulated his powers, duties and pay. His pay may be further governed by his time of service within a grade, either in fact rendered within the grade, or constructively performed therein through the force of statutes. That the office of professor of mathematics is a grade, is recognized by the act of April 17, 1866, sec. 7, (14 Stat. 38, c. 45,) which provides, "That hereafter no vacancy in the grade of professor of mathematics in the navy shall be filled."

The operation of the statutes of 1861, 1870 and 1873, in the case of Professor Roget was to give him pay during the time he performed active service, as though he were on the active list, including the longevity increase provided for by the act of 1870, and, after his active service ended, to give him seventy-five per cent of the sea pay, (which was also, in his case, the shore pay,) provided for by the act of 1873, attached to the grade which he held at the time of his retirement. This being unquestionably the legal effect of the acts approved prior to 1883, the single question involved is whether, under the act of March 3 of that year, he was entitled to have active service credited in regulating his pay as a retired officer after his active service ceased.

Ever since the retired list of the navy was established, the pay of a retired officer, as such, has been fixed by statute at a

Syllabus.

certain per centum of the active service pay of the grade held by such officer at the time of his retirement. His active service pay at that time has always been taken as the basis in ascertaining his future pay, and we are unable to discover in the act in question any design to modify this persistent rule.

It would appear not only that Congress has manifested no intention by the act of 1883 to change the laws governing the pay of retired officers, but that it has, in at least one instance, shown the contrary purpose. By a provision in the fifth section of the act of July 15, 1870, no officer promoted upon the retired list "shall, in consequence of such promotion, be entitled to any increase of pay."

It can hardly be the intention of counsel to assume that the amount of pay in question in this case should be calculated as though Professor Roget was retired in 1873 instead of in 1864. The retirement of an officer is a proceeding that can only take place in a prescribed manner, and it is not pretended that such proceeding occurred, with reference to that officer, more than once.

The Court of Claims was right in dismissing the petition of the claimant, and the judgment of that court is

Affirmed.

MARX v. HANTHORN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON.

No. 123. Argued January 19, 20, 1893. Decided March 6, 1893.

To make a tax sale valid, observance of every safeguard to the owner created by statute is imperatively necessary.

When not modified by statute, the burden of proof is on the holder of a tax deed to maintain his title, when questioned, by showing that the provisions of the statute have been complied with.

It is competent for a legislature to declare that a tax deed shall be prima facie evidence, not only of the regularity of the sale, but also of all prior proceedings, and of title in the purchaser; but as the legislature cannot deprive one of his property by making his adversary's claim to it conclu

Statement of the Case.

sive of its own validity, it cannot make a tax deed conclusive evidence of the holder's title to the land.

The reasonable meaning of the Oregon statutes regulating notices and sales of property for taxes, (Gen. Laws, ed. 1874, 767, §§ 90, 93; Hill's Ann. Laws, 1309,) is that such notice and advertisement should give the correct names of those whose property is to be sold.

Notice in Oregon that the property of Ida J. Hawthorn was to be sold was not only not notice that the property of Ida J. Hanthorn was to be sold, but was actually misleading, and such want of notice or misleading notice vitiated the sale.

THIS action was brought by the plaintiff, a subject of the Emperor of Germany, against the defendant, a citizen of Oregon, to recover the possession of lots 3 and 4, in block E, in the town of Portland.

The action was originally brought against B. Campbell, the party in possession, who, having answered that he was in possession as the tenant of Ida J. Hanthorn, the latter was substituted for him as defendant.

It is alleged in the complaint that the plaintiff is the owner of the premises, and that the defendant wrongfully withholds from him the possession thereof.

The answer contains a denial of the allegations of the complaint and a plea of title in the defendant, with a right to the possession, and the replication denies the plea.

The defendant claims the premises under a deed of August 28, 1878, from W. W. Chapman and Margaret F., his wife, the latter being the patentee of the United States, under the donation act of 1850, of a tract of land including said block E. The plaintiff claims under two deeds, one from ex-Sheriff Sears of July 29, and the other from Sheriff Jordan of July 30, 1886, each purporting to be made in pursuance of a sale of the property for taxes by the former on June 30, 1884.

By a stipulation filed in the cause it is admitted that the defendant was the owner in fee of the premises at the time of the assessment and sale of the same for taxes, and that she is still such owner, unless such sale and the conveyance thereon had the effect to pass the title to the purchaser thereat, and that the property is worth $6000.

The case was tried by the court without the intervention