(dissenting). The plaintiff in error, named as beneficiary under an insurance policy issued to August Emerson by the United States of America through the War Bisk Insurance Act (40 Stat. part 1, p. 398, c. 105), sues to recover $10,000, the amount of the policy. Emerson was in the service of the United States Coast Guard and was honorably discharged January 9, 1918. On July 22, 1918, he enlisted in the United States Naval Beserve Force for a term of four years (39 Stat. c. 417, p. 587), and continued in this service until October 31, 1919. He was confirmed as a lieutenant in the Naval Beserve Force on October 1, 1919. After his discharge on October 31, 1919, he remained as a member of the Naval Beserve Force and was entitled to retainer pay pursuant to subdivision 4, section 2900%e, Compiled Statutes 1918, p. 377. This retainer pay was the equivalent of two months’ base pay of his corresponding rank, grade, and rating in the Navy, and amounted to $41.66 for the quarter ending June 30, 1920. He was drowned July 2, 1920.
This policy of insurance under the War Bisk Insurance Act was effective on April 1, 1920. The premium due on that date, amounting to $7.80, was paid; but the premiums for the months of May and June, 1920, in the same amount were not paid by him. The plaintiff in error claims that they were in legal effect paid. The argument is that, since the government owed him pay under the terms of the War Bisk Insurance Act, it was the duty of the defendant in error to deduct these premiums from his pay, and thus keep in force and effect his indemnity of insurance. The insurance policy contained the following clause:
“I authorize the necessary monthly deduction from my pay, or, if insufficient, from any deposit with the United States, in payment of the premiums as they become due, unless they be otherwise paid.”
On October 15, 1917, the Director of the Bureau of War Bisk Insurance promulgated “Bulletin No. 1,” which was effective in May and June, 1920, and provides:
“Premiums shall be paid monthly on or before the last day of each calendar month, and will, unless the insured otherwise elects in writing, be deducted from any pay due him/her from the United States or deposit by him/her with the United States, and if so to be deducted, a premium when due will be treated as paid, whether or not such deduction is in fact made, if upon the due date the United States owe him/her on account of *423pay or deposit an amount sufficient to provide the premium, provided that the premium may be paid within 31 days after the expiration of the month, during which period of grace the insurance shall remain in full force. If any premium be not paid, either in cash or by deduction as herein provided, when due or within the days of grace, this insurance shall immediately terminate, but may be reinstated within six months upon compliance with the terms and conditions specified in the regulations of the Bureau.”
At no time did the deceased waive in writing this authorization of the Bureau to deduct premiums from any pay due him. No where does it appear that any substitution for such requirement was made in any regulation promulgated by the Bureau of War Bisk Insurance. These instructions agreed to by the insured are binding and controlling upon the Bureau, as well as upon the insured. It may not avoid this, unless it be by Emerson having notified the Bureau that he intended to change or cancel his authorization. Although in the Naval Reserve, he was in the service of the Navy until the day of his death. If the government owed him pay at the time of his death, it was the duty of the government to make the deductions for the premiums and not permit the policy to lapse for nonpayment. Retainer pay is provided for the Naval Reserve Force and is fixed by statute. Subdivision 4, § 2900%c, Comp. St. 1918, p. 377; Subdivision 12, § 2900%a, Comp. Stat. 1918, p. 375. The statute provides a continuance of the Naval Reserve Force, and the retainer pay is always one-sixth of the base pay of the corresponding rank, grade, or rating.
Officers of the Navy who are thus classed are still in the service, and are entitled to the pay which the law allows, not as a gratuity, but as compensation for services. United States v. Tyler, 105 U. S. 244, 26 L. Ed. 985. There is a difference between retirement from active service and retiring wholly and altogether from the service. Officers in this position in the Navy may be called to active service, but when they are recalled, they receive active pay. One on the retainer list of the Naval Reserve Force is required to perform the duties as-prescribed in the statute. Actively employed and inactively employed makes merely the difference in compensation. Kahn v. Anderson, 255 U. S. 1, 41 S. Ct. 224, 65 L. Ed. 469. Therefore Emerson on the retainer list was in the service of the United States and was paid for such service. His pay accrued daily; that is, from month to month. It was subject to deduction for premiums.
But it is argued that, because the Bureau of War Risk Insurance issued a regulation, “Owner’s Form” 2303, which came to Emerson’s notice November 6, 1919, the date of his release from active service, and contained the following:
“After discharge from the service, when your government pay ceases, you should send check or money order, drawn to the Treasurer of the United States, to the Disbursing Clerk, Bureau of War Risk Insurance, Treasury Department, Washington, D. C. Do not wait for a notice but send cheek or money order promptly on 1st of each month,”
—that this changed the effect of the contract that the premiums were payable at the end of each month, and that Emerson had authorized the necessary monthly deduction from his pay, or, if insufficient, from any deposit with the United States for the payment of the premiums as they became due. Of course, a regulation of the executive department authorized by an act of Congress gives the Bureau power to adopt general rules relating to the subject upon which the Bureau acts, and such adoption has the force of law. But such power cannot change the provisions of the act itself and deprive one of the light given pursuant to the act Such legislative power cannot be delegated to a department.
Form 2303, as effective, says: “After discharge from the service, when your government pay ceases.” May 31,1920, found Emerson still in the service under retainer pay, and there was then due him $27.76; $7.80 per month for two months was due as premiums, and, under the authorization of his application, his pay should have been applied as payment of his premiums. The Bureau did not so apply it, and they may not now take advantage of its refusal so to do. The notice, “when your government pay ceases,” does not mean when your government active pay ceases. The meaning of the statute is plain that payment may be made from the retainer pay, and as long as the government continued paying, under obligation so to do, as was the case here, there was-pay from which the premiums might be deducted under the terms of the policy, and under the regulation promulgated by the Bureau. The character of the service and the nature of the pay is fixed, and the government Bureau did not and could not alter it. United States v. Symonds, 120 U. S. 46, 7 S. Ct. 411, 30 L. Ed. 557; United States v. Strong, 125 U. S. 656, 8 S. Ct. 1021, 31 L. Ed. 823. The *424fact that Emerson paid on the 1st of each month, for some months previous to his default for the months of May and June, does not change the obligation of one of the contracting parties toward the other. Their rights and obligations were fixed by the contract of insurance, and not by their practice of payment.
For these reasons, I think the judgment below should he reversed, and I dissent from the judgment about to be rendered.