United States v. Moore
| Decision Date | 01 October 1877 |
| Citation | 24 L.Ed. 588,95 U.S. 760 |
| Parties | UNITED STATES v. MOORE |
| Court | U.S. Supreme Court |
APPEAL from the Court of Claims.
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 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.
Mr. Assistant Attorney-General Smith for the United States.
Mr. John B. Sanborn and Mr. Charles King, contra.
On the 12th of April, 1869, the appellee was appointed an assistant-surgeon in the navy of the United States. On the 24th of February, 1874, he was examined for promotion to the grade of surgeon. On the following day, he was notified by the Secretary of the Navy that the report of the board of examiners was approved by the department, and that from that date he would be regarded as a passed assistant-surgeon. From that time up to the institution of this suit he received the pay fixed by law for passed assistant-surgeons during the first five years after their appointment as such.
The statutes of the United States provides as follows:——
'The active list of the medical corps of the navy shall consist of fifteen medical directors, fifteen medical inspectors, fifty surgeons, and one hundred assistant-surgeons.' Rev. Stat., sect. 1368. 'No person shall be appointed surgeon until he has served as an assistant-surgeon at least two years on board a public vessel of the United States at sea, nor until he has been examined and approved for such appointment by a board of naval surgeons designated by the Secretary of the Navy.' Id., sect. 1370. 'The commissioned officers and warrant officers on the active list of the navy of the United States, and the petty officers, seamen, ordinary seamen, firemen, coalheavers, and employees in the navy, shall be entitled to receive annual pay at the rates herein stated after their respective designations.' . . . 'Passed assistant-surgeons, passed assistant-paymasters, and passed assistant-engineers, during the first five years after date of appointment, when at sea, $2,000; on shore-duty, $1,800; on leave or waiting orders, $1,500; after five years from such date, when at sea, $2,200; on shore-duty, $2,000; on leave or waiting orders, $1,700.' Assistant-surgeons, assistant-paymasters, and second assistant-engineers, during the first five years after date of appointment, when at sea, $1,700; on shore-duty, $1,400; on leave or waiting orders, $1,000; after five years from such date, when at sea, $1,900; on shore-duty, $1,600; on leave or waiting orders, $1,200.' Id., sect. 1556.
The appellee claims that the phrases, 'after date of appointment' and 'from such date,' touching passed assistant-surgeons, refer to the date of his original appointment, when he entered the service as assistant-surgeon, and not to the time of the notification by the Secretary of the Navy...
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