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544

Dissenting Opinion by Judge Madden

"allowances" in his statute. But what of the perquisites which Horton and Blair and all the regularly retired officers will receive, and will have to be satisfied with? It is said that they are small, and that Congress could not have meant so little when it used the word "allowances," though it meant just that when it used the word "emoluments." It is also said that Congress could not have meant these perquisites, because all officers retired under general law receive them. This seems to me to involve a presumption that Congress intended to discriminate in favor of plaintiff and against all other officers, and a search for a meaning that will fulfill that presumption. I think the presumption should be the opposite, and that the meaning which lies readily at hand should be adopted.

Three general statutes use substantially the language of the special act here in question. Section 1026, Title 10, U. S. Code, enacted in 1916, reenacted in 1920 and 1939, relates to army officers and is as follows:

Any officer who shall have served four years as chief of a branch, and who may subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the grade held by him as such chief. Section 1026a, Title 10, U. S. Code, enacted in 1901, also relating to army officers, provides:

Any officer who on February 2, 1901, held office in any corps or department, and who, since said date, has served or shall have served as chief of a staff corps or department and who shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the retirement of such corps or department chief.

Section 443, Title 5, U. S. Code, enacted in 1908, reenacted in 1922 and again in 1938, without modification here material, is as follows:

Any officer of the Navy who is now serving or shall hereafter serve as a chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by

1 In addition to the perquisites mentioned in the Horton case, see U. S. Code, Tit. 34, sec. 994 (a), (b), (c), fixing the pay and allowances of an officer on the retired list, when on active duty.

Dissenting Opinion by Judge Madden

93 C. Cls.

law for the retirement of such bureau chief, and any officer of the Navy who prior to July 1, 1922, has served four years as chief of a bureau in the Navy Department and shall be retired subsequent to the completion of such period of service for physical disability due to wounds inflicted by the enemy while in the performance of his duty shall be retired with the rank, pay, and allowances now authorized by law for the retirement of a chief of a bureau.

Every officer retired under the provisions of those statutes has the same right to active service allowances after he retires from the active service that plaintiff has. If the word "allowances" as used in those statutes can be satisfied, as to officers retiring under them, by their receiving what their brethren receive in the way of perquisites, I see no reason why plaintiff should receive more. Although a departmental interpretation giving such retired officers the allowances of officers in the active service would have lent strong support to plaintiff's argument, considering that two of the statutes have been recently reenacted without material change after many years of administration, plaintiff has made no showing that they have received such an interpretation.

The decision of the majority adheres to the previous rulings of the Court in the Sweeney and Ralston cases. I think those decisions were wrong. It seems to me that today's decision of the Court in the Willey case relies upon an immaterial verbal distinction between that case, on the one hand, and the present case and the Sweeney and Ralston cases, on the other. The necessity for such distinctions should be removed by declining to follow further the Sweeney and Ralston cases. I would dismiss plaintiff's petition. I am authorized to say that Judge Littleton agrees with the views here expressed.

LITTLETON, Judge: I concur in all the reasons given and the conclusions reached in the foregoing dissenting opinion and believe that they are fully sustained by the cases of United States v. Kirby, 7 Wall. 482, 486, 487; Ryan et al v. Carter et al, 93 U. S. 78, 84; Heydenfeldt v. Daney Gold and Silver Mining Co., 93 U. S. 634, 638; United States v. Moore, 95

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Littleton, Judge, concurring

U. S. 760, 763; United States v. Saunders, 120 U. S. 126, 129; United States v. Jones, 131 U. S. 1-14, 16–19; United States v. Chase, 135 U. S. 255, 258; Petri v. Commercial National Bank of Chicago, 142 U. S. 644, 650; Holy Trinity v. United States, 143 U. S. 45, 47, 49; In re Chapman, 166 U. S. 661, 667; Rhodes v. Iowa, 170 U. S. 412, 422; Hamilton v. Rathbone, 175 U. S. 414, 419, 421; United States v. Farenholt, 206 U. S. 226, 229; American Tobacco Company v. Werckmeister, 207 U. S. 284, 293, 296; Ozawa v. United States, 260 U. S. 178, 193, 194; United States v. Katz et al, 271 U. S. 354, 362; United States et al v. American Trucking Associations, Inc. et al., 310 U. S. 534, 542, 544, 553; Shacklette v. United States, 71 C. Cls. 376.

EDWARD A. BLAIR v. THE UNITED STATES

[No. 43641. Decided May 5, 1941]

On the Proofs

Pay and allowances; meaning of "emoluments" as used in special act. Where a special act of Congress authorized the President to place upon the retired list an officer of the Marine Corps "with the pay and emoluments" of his grade, it is held that the word "emoluments" as used in the said act does not include the "allowances" authorized by law to be paid an officer of his grade who is on active duty. Sweeney v. United States, 82 C. Cls. 640, and Ralston v. United States, 91 C. Cls. 91, distinguished.

The Reporter's statement of the case:

King & King for the plaintiff. Messrs. John W. Gaskins and Fred W. Shields were on the brief.

Miss Stella Akin, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.

The court made special findings of fact as follows:

1. On November 12, 1906, plaintiff was appointed a cadet in the U. S. Revenue Cutter Service and served as such cadet until May 27, 1908, when his resignation from that office was accepted. Thereafter, on January 22, 1909, he accepted ap

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Reporter's Statement of the Case

93 C. Cls.

pointment as Second Lieutenant in the U. S. Marine Corps. 2. Plaintiff served as an officer of the Marine Corps until September 11, 1913, when he was ordered to appear before a Marine Retiring Board, which Board, after hearing the evidence in his case, found him incapacitated for active service by reason of a disease of the spine; and that such incapacity was not the result of an incident of the service. On October 22, 1913, the President approved the proceedings and findings of the Board, and directed that plaintiff be wholly retired from the service, in conformity with Sections 1622 and 1252 of the Revised Statutes. Plaintiff thereupon was wholly retired from the service on October 22, 1913.

3. On January 30, 1929, the following Act of Congress was approved (45 Stat. 2043):

That the President is authorized to appoint Edward A. Blair a second lieutenant of the United States Marine Corps and to retire him and place him upon the retired list of the Marine Corps with the retired pay and emoluments of that grade.

Pursuant to the above act, the plaintiff was, on February 14, 1929, appointed a Second Lieutenant of the U. S. Marine Corps, with rank from January 30, 1929, which appointment he accepted on February 18, 1929. On February 18, 1929, he was placed on the retired list of officers of the Marine Corps with the rank of Second Lieutenant, where he has since remained.

4. Since being placed on the retired list, plaintiff has received the retired pay of an officer of his rank and length of service, but has received no rental or subsistence allowances. If entitled to the rental and subsistence allowances of an officer of his rank and length of service, without dependents, from August 1, 1931, to July 31, 1938, the date of the latest available roll on file in the General Accounting Office, there is due him the sum of $4,683.52, as computed by the General Accounting Office. Plaintiff's claim is a continuing one.

5. Plaintiff's petition was filed on August 31, 1937. If that portion of his claim which accrued prior to August 31, 1931, is barred by the statute of limitations, there should be deducted from the amount due him the sum of $58, represent

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Opinion of the Court

ing rental and subsistence allowances for the period August to 30, 1931.

The court decided that the plaintiff was not entitled to

recover.

GREEN, Judge, delivered the opinion of the court :

The plaintiff, a retired officer in the United States Marine Corps, brings this suit to recover rental and subsistence allowances.

The findings show that by virtue of a special act of Congress, set out therein, plaintiff was appointed a Second Lieutenant in the United States Marine Corps and placed upon the retired list thereof "with the retired pay and emoluments of that grade." Although he is on the retired list, he brings this suit alleging that by the terms of the act under which he was retired he is entitled to recover the allowances authorized by law to be paid an officer of his grade who is on active duty. In support of this claim the plaintiff relies upon Sweeney v. United States, 82 C. Cls. 640, and Ralston v. United States, 91 C. Cls. 91, but we think the decisions made in those cases have no application.

In the cases cited above it appears that the act authorizing the plaintiffs' appointments was worded differently. The appointment was made in each case, as specified in the acts, "with retired pay and allowances of that rank” (or grade). In an extended opinion in the Sweeney case, supra, we held in effect that the act of Congress authorizing the appointment was ambiguous; that there were no allowances made by law to officers on the retired list; and that unless we construed the act to refer to the allowances made to officers on active duty the word "allowances" would be given no meaning or significance whatever and the same effect would be placed on the act as though the word "allowances" was omitted entirely. This, the opinion held, we could not properly do.

The Ralston case, supra, merely followed the Sweeney case. It will be observed that the decision in the Sweeney case was based on the theory that unless the word "allowances" was treated as applying to the allowances of the active service there was no meaning that could be ascribed to it. In

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