dеlivered the opinion of the court: The plaintiff, then a lieutenant in the United States Army, servеd as instructor in the department of ordnance and science of gunnery at the United Stаtes Military Academy at West Point, between the date of March 1, 1926, and September 13, 1926. During that period he received pay and allowances of his rank. He claims he was entitled to the pay of a major, under the provisions of the act of February 28,1873 (sec. 1133, chаpter 27, title 10, U.S.C.), being section 1336 of the Revised Statutes.
Chapter 27, title 10, U.S.C., deals exclusively with the оrganization and administration of the Military Academy, Section 1133 fixes the salaries of prоfessors at the Academy, it being provided that—
*633 “ instructors of ordnance and science of gunnery and of practical engineering shall have the pay and allowances of major.”
The Government defends against the claim on the sole ground that the foregoing provision of law was repealed by the act of June 10, 1922, 42 Stat. 625. If the defendant, is right in this contеntion plaintiff’s case falls, otherwise he is entitled to recover $133.33.
The act of June 10, 1922, dоes not in express terms repeal the act of February 28, 1873. The 1922 act, therefore, can be held to have repealed the former act only if the provisions of the two acts (dealing with the same subject) are so contradictory in their terms and so repugnant one to the-.other, as to indicate clearly an intent on the part of Congress tо substitute the later act for the former one, or if the provisions of the two acts arе not in express terms contradictory and repugnant, the later act covers the whole-subject of the former plainly showing that it was intended as a substitute for the same. Hill v. United States, 68 C.Cls. 740; United States v. Tynen,
The aсt of February 28, 1873, has to do entirely with the pay of instructors assigned to the Military Academy. The quеstion of the rank of officers assigned for this duty is not involved. We regard the fact that such compensation is not fixed in terms of dollars and cents, but is based on the pay and allowances of officers of certain designated ranks, as wholly immaterial. The effect in eithеr event is the same, fixing the salaries of instructors at the Academy at a certain and dеfinite figure. Congress clearly acted within its authority in fixing the salary of instructors in the department of ordnance and science of gunnery at an amount equivalent to the pay and allowances of a major in the Army. Whatever rank officers assigned to this duty may have belоw that of major, they are upon their designation as such instructors entitled under the act tо the pay of a major. Strong v. United States, 60 C.Cls. 627; Danford v. United States, 62 C.Cls. 285.
The act of June 10, 1922, is an act to adjust the pay and allowаnces of the commissioned and enlisted personnel of
There is no such repugnancy in the provisions of the two acts as would justify the conclusion that the act of June 10, 1922, operated to repeal, by implication, the act of February 28, 1873, and the former act does not cover or even rеfer to the subject matter of the latter.
The fact that Congress has made no appropriation for the pay and allowances of plaintiff does not preclude his right to recover. His right to the pay and allowances fixed by law is not in any respect dеpendent on an available appropriation by Congress. McNeil v. United States, 64 C.Cls. 406; Palmer v. United States, 69 C.Cls. 260; Conrad v. United States, 74 C.Cls. 289; Crist v. United States, 74 C.Cls. 283.
Judgment is ordered to be entered in favor of the plaintiff for $133.33.