Willey v. United States

94 Ct. Cl. 588 | Ct. Cl. | 1941

Lead Opinion

GreeN, Judge,

delivered the opinion of the court:

The plaintiff, a warrant officer on the retired list of the United States Navy, brings this suit to recover rental and subsistence allowances.

It appears from the findings that in accordance with a special act of Congress, set out therein, the plaintiff was transferred to the retired list of officers of the Navy, and the Secretary of the Navy was authorized and directed to grant him “the retired pay and allowances of his rank and length of service in accordance herewith.” Although he is on the *590retired list be 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. No argument is made to support this claim except to cite the cases of Sweeney v. United States, 82 C. Cls. 640, and Ralston v. United States, 91 C. Cls. 91, which are said to be exactly in point and show that the plaintiff is entitled to recover.

In the cases cited the acts authorizing the plaintiffs’ appointments were worded differently from the one under which plaintiff makes his claim. The appointment was made in each case, as specified in the acts, “with the retired pay and allowances of that ra/rúc” (or grade). In the instant case instead of using the words “of that rank” (or grade) the act specifies that the officer should be granted “the retired pay and allowances of his rank and length of service in accordance herewith.” The words “in accordance herewith” must mean in accordance with the remainder of the act, which placed the plaintiff on the retired list. It would not be “in accordance” with the provisions of the act placing the plaintiff on the retired list to give him the allowances, which by the general law are paid to those only in the active service. It is true that if plaintiff were called back to the active service he could then receive allowances, but that is not the case here, and the only harmonious construction that can be placed on the act is to hold that the plaintiff is not entitled to allowance while he is in the retired service. It is a rule of construction of legislative acts that effect must be given to every word and clause, if possible. Montclair v. Ramsdell, 107 U. S. 147, 152. When we do this we are constrained to hold that the plaintiff is not entitled to any allowances while upon the retired list.

It follows that the plaintiff’s petition must be dismissed and it is so ordered.

Jones, Judge; and Whaley, Chief Justice, concur.



Concurrence Opinion

Madden, Judge,

concurring:

I concur in the result. I cannot, however, distinguish between the language of the special act in the Christopher S. Long case, decided today (98 C. Cls. 544), and that used *591in the statute here involved. The act in the Long case provided for Long’s retirement and for his having “the retired pay and allowances of that rank”, lieutenant (junior grade). The act in this case provides for plaintiff’s retirement, and for his having “the retired pay and allowances of his rank (warrant machinist) and length of service in accordance herewith.” [Italics supplied.]

The opinion of the court relies on the expression in accordance herewith as showing that the Congress recognized that plaintiff was being retired, and that therefore his allowances should be those of a retired officer. But surely, in passing these short special retirement acts the Congress always remembers in one line what it said in the preceding one, and does not intend so soon to contradict itself.

In the Long case the majority of the court justified its giving Long preferred treatment by the fact that if it did not give him the allowances of an active officer, which he was not, he would not get much in the way of allowances as a retired officer, which he was. What he would have got would have been what plaintiff gets in this case. Why the supposedly meagre allowances which this plaintiff, along with all regularly retired officers, will get under this decision, satisfies the call of the word “allowances” for a meaning in plaintiff’s act, but do not in the Long act, I do not see.

Judge Littleton authorizes me to say that he concurs in the views here expressed.