1. An army officer
held not entitled to count for
longevity pay his service as a cadet in the Military Academy. P.
268 U. S.
616.
2. The proviso in § 11 of the Act of May 18, 1920, 41 Stat.
601
"that hereafter longevity pay for officers in the Army, Navy,
Marine Corps, Coast Guard, Public Health Service, and Coast and
Geodetic Survey shall be based on the total of all service in any
or all of said services"
does not deal with rules of longevity in any one service, but
intends to produce equality as between all the services named, and
did not repeal the provisions in the Army and Naval Appropriation
Acts, of October 24, 1912, and March 4, 1913, respectively,
directing that service in the Military and Naval Academies shall
not be counted in computing for any purpose the length of service
of any officer of the Army, Navy, or Marine Corps.
58 Ct.Cls. 688 reversed.
Appeal from a judgment of the Court of Claims allowing recovery
of longevity pay by an army officer.
Page 268 U. S. 614
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
Daniel Noce was major of engineers in the United States Army in
the emergency establishment from May 18, 1920, until June 30, 1920,
when he returned to a captaincy in the regular establishment. He
sued the United States in the Court of Claims for $467.66 as
longevity pay, alleged to be due him under the law over and above
the pay he received. He was appointed cadet at the West Point
Military Academy August 1, 1913. He was graduated April 20, 1917.
If he can count for longevity pay his cadet service from August 1,
1913, to April 20, 1917, he will be entitled to the amount he
claims from the date of approval of the Act of Congress of May 18,
1920 (§ 11, c.190, 41 Stat. 601, 603) to April 19, 1922, the period
covered by this suit. The accounting officers denied the claim.
The Court of Claims found that, under the Act claimant's cadet
service must be counted, and gave judgment for him. The United
States has appealed, and urges a reversal, on the ground that such
a conclusion is forbidden by the Army Appropriation Act of August
24, 1912, c. 391, § 6, 37 Stat. 569, 594, which provides:
"That hereafter the service of a cadet who may hereafter be
appointed to the United States Military Academy, or to the Naval
Academy, shall not be counted in computing for any purpose the
length of service of any officer of the Army."
A similar provision was made in the Naval Appropriation Act of
March 4, 1913, c. 148, 37 Stat. 891, as follows:
"Hereafter, the service of a midshipman at the United States
Naval Academy, or that of a cadet at the United States Military
Academy, who may hereafter be appointed
Page 268 U. S. 615
to the United States Naval Academy or to the United States
Military Academy shall not be counted in computing for any purpose
the length of service of any officer in the Navy or in the Marine
Corps."
The Court of Claims held that these two provisions held been
repealed by the Act of May 18, 1920, already referred to. The Act
is entitled
"To increase the efficiency of the commissioned and enlisted
personnel of the Army, Navy, Marine Corps, Coast Guard, Coast and
Geodetic Survey, and Public Health Service."
It increased the pay of certain commissioned officers of the
Army, Navy, Marine Corps, and Public Health Service, mentioning in
detail the ranks affected and the increases provided. It provided
for a temporary commutation of quarters, heat, and light
theretofore granted to Army officers on duty in the field to those
of the Navy, Marine Corps, Coast Guard, and Public Health Service.
It gave warrant officers of the Navy an increase, in addition to
all pay allowances, of $240 per annum. It increased the pay of all
enlisted men of the Army and Marine Corps and of female nurses 20
percentum, with certain exceptions. It increased the commutation
rations of noncommissioned officers of the Army, of the Marine
Corps, and of field clerks of the Army and the Quartermaster Corps.
It gave a new base pay for enlisted ratings of petty officers and
noncommissioned officers and of enlisted men in the Navy, of the
Naval Academy band, and of the Fleet Naval Reserve. It authorized
the Secretary of the Navy, in his discretion, to readjust the
prevailing rates of pay of civilian professors and instructors of
the Naval Academy. In § 8, it provided that the Coast Guard should
have the same pay ratings to correspond with the Navy, and
mentioned the officers. Then, by § 11, it provided as follows:
"Sec. 11. That, in lieu of compensation now prescribed by law,
commissioned officers of the Coast and Geodetic Survey shall
receive the same pay and allowances as now
Page 268 U. S. 616
are or hereafter may be prescribed for officers of the navy with
whom they hold relative rank as prescribed in the Act of May 22,
1917, entitled 'An act to temporarily increase the commissioned and
warrant and enlisted strength of the Navy and Marine Corps, and for
other purposes,' including longevity, and all laws relating to the
retirement of commissioned officers of the Navy shall hereafter
apply to commissioned officers of the Coast and Geodetic Survey:
Provided, that hereafter longevity pay for officers in the
Army, Navy, Marine Corps, Coast Guard, Public Health Service, and
Coast and Geodetic Survey shall be based on the total of all
service in any or all of said services."
It is this proviso which it is said repealed the laws of 1912
and 1913 above quoted. It is urged that the words "longevity pay
shall be based on the total of all service in any or all of said
services" are inconsistent with the exclusion of service in the
Military Academy or in the Naval Academy from the calculation of
longevity pay.
We are unable to put such a construction on this proviso. The
whole act was intended to promote equality between the six
services. After equalizing their pay, it was intended to give any
officer or any man in either of the services the benefit of
longevity increases for any service which he might have had in any
other of the services. The Report of the Managers of the House of
Representatives as to § 11 and its proviso (H.R. 948, 66th
Congress, 2nd Sess.) said:
"It provides that commissioned officers of the Coast and
Geodetic Survey, a highly technical and specialized service, shall
receive the same pay and allowances as are prescribed for officers
of the Navy with whom they hold relative rank as prescribed in the
Act of May 22, 1917.
It also contains a proviso placing all
services on an equality in the matter of computation of longevity
or service pay. "
Page 268 U. S. 617
In other words, the longevity pay of a member of any service was
to be determined by his total service in any or all of the
services. It was not dealing with the rules as to the longevity in
any one service. It was to make the calculation of longevity as if
the six services were but one service. It was not aiming at any
inequality within a service, but at an inequality between services.
No reference is made to cadet service, and nothing to indicate that
Congress had it in mind.
The question whether service in either of the Academies was Army
or Navy service which should count for longevity pay and retirement
was a longstanding issue between the officers of the Army and Navy
who were graduates of the two Academies, on the one hand, and the
officers who were not graduates and the accounting officers of the
Treasury, on the other. This is evident from the decision of this
Court in
United States v. Morton, 112 U. S.
1,, and
United States v. Watson,
130 U. S. 80. The
legislative history of the Act of 1912 and that of 1913 shows that
the question was much contested between the two houses. The Report
of the House Committee on Military Affairs (H.R. 270, 62nd
Congress, 2nd Sess.) gives an extended argument against the
practice of computing cadet service for pay and retirement
purposes. It said:
"The result of this practice is that a graduate of the Military
Academy who was appointed a second lieutenant, after having been
educated for that appointment for four or more years wholly at the
expense of the government, receives his first 10 percent increase
of pay after not more than one year of service as a commissioned
officer, whereas the second lieutenant who is appointed from civil
life, after having been fitted for the appointment wholly at his
own expense, must serve for five full years as a commissioned
officer before he can receive his first 10 percent increase of pay.
And the same disparity between the two cases continues to the end.
"
Page 268 U. S. 618
After pointing out other discriminations arising from this
practice, the report continues:
"It is but just to say that this preposterous practice did not
originate with the War Department. It was the result of a decision
rendered by the Supreme Court October 27, 1884 (
Morton v.
United States, 112 U. S. 1), to the effect that
the time during which a person has served as a cadet is to be
regarded as 'actual time of service in the army.' . . ."
After referring specifically to retirement, the report says:
"These are additional discriminations against the civilian
appointee who pays for his own preliminary education and in favor
of the graduate of the Military Academy, who is educated for his
commission at the expense of the government."
In view of this long-continued controversy, which before 1912
had finally been settled only by two decisions of this Court, it is
inconceivable that the two Acts of 1912 and 1913, nullifying the
effect of those decisions, and passed after a heated struggle,
should have been repealed without mention of the cadet service in
the proviso now said to have worked this result. As already pointed
out, the Act of which this was a part was detailed in its reference
to the commissioned officers, the noncommissioned officers, and to
the enlisted men of the various six services affected, and to the
pay and increases which they were to receive. Had it been intended
to increase the "fogey" pay, as the longevity pay is called, for
only a part of the commissioned officers of the Army and only a
part of the commissioned officers of the Navy, and only a part of
the commissioned officers of the Marine Corps in such a specific
act, the favor thus to be conferred upon them would certainly have
been set forth in language whose meaning could not be mistaken.
It is indeed very difficult to say that there is any real
inconsistency between the proviso of 1920 and the Acts of
Page 268 U. S. 619
1912 and 1913. It is supposed to be shown in the use of the
words "any or all the services," and it is said that, as "any" may
mean one or more, it may apply to the Army alone, and can only be
satisfied by making it apply to the total service in the Army
alone, and must therefore mean service in the Army as construed by
this Court in the
Morton case and the
Watson
case, in which it was held that, under then existing legislation,
service in the Military Academy was service in the Army. This, it
seems to us, is a strained method of first finding an
inconsistency, by no means clear if it exists at all, and then
erecting it into an implied repeal. Implied repeals are not
favored.
United States v. Greathouse, 166 U.
S. 601,
166 U. S. 605;
Frost v. Wenie, 157 U. S. 46,
157 U. S. 58;
United States v. Yuginovich, 256 U.
S. 450,
256 U. S.
463.
Judgment reversed.