United States v. Moore
95 U.S. 760 (1877)

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U.S. Supreme Court

United States v. Moore, 95 U.S. 760 (1877)

United States v. Moore

95 U.S. 760

Syllabus

1. The words, "after date of appointment" and "from such date," which occur in sec. 1556 of the Revised Statutes, fixing the annual pay of passed assistant surgeons of the navy, refer not to the original entry of the officer into the service as an assistant surgeon, but to the notification by the Secretary of the Navy that he has passed his examination for promotion to the grade of surgeon, and will thereafter, until such promotion, be considered as a passed assistant surgeon.

2. A passed assistant surgeoncy is an office, and the notification of the Secretary of the Navy is a valid appointment to it.

This was an action in the Court of Claims by Andrew M. Moore against the United States to recover certain pay which he alleged was due him as an officer in the navy.

That court found the following facts:

1. On the 12th of April, 1869, the claimant was appointed and commissioned an assistant surgeon in the navy of the United States.

2. On the 24th of February, 1874, after examination, he was found qualified for promotion to the grade of surgeon. He was, on the following day, notified by the Secretary of the Navy that the report of the board of examiners, before whom he had appeared for examination, was approved by the department, and that from that date he would be regarded as a passed assistant surgeon, and from that date up to the date of the institution of this suit, May 3, 1876, he received pay as passed assistant surgeon in the first five years after appointment as such.

3. From the 12th of April, 1874, till May 3, 1876, the claimant's service was as follows: on-shore duty, four hundred and thirty eight days, for which he was paid at the rate of $1,800 per annum; on leave or waiting orders, three hundred and twenty three days, for which he was paid at the rate of $1,500 per a num.

Upon the foregoing facts, the court, being equally divided in opinion, held pro forma, for the purposes of an appeal, that the claimant was entitled to the rate of pay established by law for a passed assistant surgeon, after five years from the date of

Page 95 U. S. 761

appointment -- that is to say, when on shore duty, at the rate of $2,000 per annum, and when on leave or waiting orders, at the rate of $1,700 per annum; and that the claimant was therefore entitled to receive, for the seven hundred and sixty one days specified, the additional sum of $409.5, for which judgment was entered.

The United States appealed.

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