Heidt v. United States, 6265.

• Decision Date: 22 February 1932
• Docket Number: No. 6265.,6265.
• Parties: HEIDT v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

56 F.2d 559 (1932)

HEIDT v. UNITED STATES.

No. 6265.

Circuit Court of Appeals, Fifth Circuit.

February 22, 1932.

Max H. Wier and Raymond D. Wier, both of San Antonio, Tex., for appellant.

John D. Hartman, U. S. Atty., of San Antonio, Tex.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

The United States recovered judgment against Grayson V. Heidt for overpayments made to him as an active officer of the army between July 1, 1922, and January 1, 1929, and he appeals.

The case was tried by the court without a jury on an agreed statement of facts in brief as follows: Heidt became a commissioned officer February 15, 1899; was retired to the inactive list September 21, 1908, because of disabilities incurred in the line of duty, but not due to wounds received in action. After five years, ten months, and twenty-six days of retirement he was put on active duty August 18, 1914, and so continued until September 17, 1917, when he was put again on the active list of the Army under the provisions of the Act of March 4, 1915. After the latter date he computed the period of five years, ten months, and twenty-six days of inactivity as part of his service in claiming longevity pay, and was paid accordingly until January 1, 1929. On that date he was first notified by the army finance officer that the inclusion of the inactive period was considered improper. The full facts about Heidt's service were at all times obtainable from the records of the War Department. Recovery was sought and had only for the period since July 1, 1922, when the Act of June 10, 1922, took effect (42 Stat. 625).

One contention is that by long continuance of the payments with knowledge of the facts the United States is estopped to recover. A voluntary payment made by an individual under no mistake of fact is ordinarily not recoverable, because he may do what he wills with his own money. But the rule is quite otherwise in payments of public money made by public officers. Norfolk County v. Cook, 211 Mass. 390, 97 N. E. 778, Ann. Cas. 1913B, 650 and note. They have no right of disposal of the money, but must act according to law, the law operating as a limitation on their authority to pay. The party receiving an illegal payment is bound to know the law, and ex equo et bono is liable to refund it. Wisconsin Central R. Co. v. United States, 164 U. S. 190, 17 S. Ct. 45, 41 L. Ed. 399; United States v. Burchard, 125 U. S. 176, 8 S. Ct. 832, 31 L. Ed. 662. The long continuance of overpayments illegally made does not prevent their recovery, even when contractual relations are involved. Grand Trunk Western Ry. Co. v. U. S., 252 U. S. 112, 40 S. Ct. 309, 64 L. Ed. 484. Much less where, as here, no contract has been made on the faith of them, for a soldier's services and pay are regulated wholly by law. While there is hardship in recalling money which has probably been spent, there is no basis for an estoppel because of a change of condition on the faith of the conduct or representations of another. In Walker v. United States (C. C.) 139 F. 409, affirmed (C. C. A.) 148 F. 1022, where estoppel was applied, the person accounting with the government did not retain or spend as his the involved money, but paid it over to others from whom he could not recover it. Here Heidt received the overpayments as his own money, and either has them or has used them for his own benefit. He can claim no estoppel against a demand for their repayment.

We think the court correctly found that the sums claimed were illegal overpayments. Heidt's pay as an active officer during the time in question was fixed by the provisions of the Act of June 10, 1922. The parts of section 1 (37 USCA §§ 3, 4), here material are: "Every officer paid under the provisions of this section shall receive an increase of 5 per centum of the base pay of his period for each three years of service up to thirty years. * * * For officers appointed on and after July 1, 1922, no service shall be counted for purposes of pay except active commissioned service under a Federal appointment, and commissioned service in the National Guard when called out by order of the President. For officers in the service on June 30, 1922, there shall be included in the computation all service which was then counted in computing longevity pay. * * *" Retired pay is separately dealt with in section 17. Heidt, being an active officer in service on June 30, 1922, was entitled to count all service then counted in computing pay. Section 16 (37 USCA § 25) also provides: "That nothing in this Act shall operate to reduce the pay of any officer on the active list below the pay to which he is entitled by reason of his grade and length of service on June 30, 1922." We do not understand that these provisions ratify or enact into law any errors or overpayments made to Heidt prior to June 30, 1922, but the meaning is that he shall continue to have the same longevity pay that he was theretofore entitled by law to receive. We are therefore carried back into the history of longevity pay, and the effect upon it of retirement from active service. Section 1262 of the Revised Statutes provided for an increase in pay of "ten percentum of their current yearly pay for each term of five years service." In United States v. Tyler, 105 U. S. 244, 26 L. Ed. 985, decided in 1881, it was held that an officer on the retired list was still in service and was entitled to the increase which was to be compounded from term to term. By the Act of June 30, 1882, 22 Stat. 118, Congress overcame the decision as to compounding. Plummer v. United States, 224 U. S. 137, 32 S. Ct. 467, 56 L. Ed. 697. In the same act it was provided: "And the actual time of service in the Army or Navy, or both, shall be allowed all officers in computing their pay." Whether "actual time of service" was intended to exclude service on the retired list we need not consider, because on March 2, 1903, 32 Stat. 932, it was expressly enacted: "That hereafter, except in case of officers retired on account of wounds received in battle, no officer now on the retired list shall be allowed or paid any further increase of longevity pay, and officers hereafter retired, except as herein provided, shall not be allowed or paid any further increase of longevity pay above that which had accrued at date of their retirement." Heidt was retired under this act, and, so long as he remained on the retired list, was clearly entitled to no further increase. The act of March 4, 1915, 38 Stat. 1068, authorized the President with the consent of the Senate to transfer to the active list certain officers, "provided, That such officer shall be transferred to the place on the active list which he would have had if he had not been retired, and shall be carried as an additional number in the grade to which he may be transferred or at any time thereafter promoted." It was under this act that Heidt was returned to the active list in 1917. He contends, by virtue of its requirement, that he be given "the place on the active list which he would have had if he had not been retired," that he is entitled, not only to the grade and rank, but also to the longevity pay, which he would have had if he had always been on the active list. It is true these provisions occur in an appropriation act, but that means nothing in congressional legislation. The context, we think, shows that by "place" Congress meant only grade and rank, with such increase of pay as directly resulted therefrom. The effect of the act of 1903 was to exclude the time spent in retirement from calculation as service for purposes of longevity pay, and there is nothing in the language of the act of 1915 sufficient to overturn that policy. The act of May 12, 1917, 40 Stat. 48 (10 USCA § 974), did allow to be computed active service while on the retired list, and Heidt has been allowed this.

In the Act of June 4, 1920, § 51 (adding § 127a to Act June 3, 1916) 41 Stat. 785, active duty, whether in the regular, provisional, or temporary forces, is to be credited the same as under a regular army commission. In 10 USCA § 683, the words in the Act of June 10, 1922, "Service which is now counted in computing longevity pay" were substituted by those from the Act of June 4, 1920, so as to read: "For officers in the service on June 30, 1922, there shall be included in the computation all active duty performed while under appointment or enlistment from the United States Government, whether in the regular, provisional or temporary forces," etc. The wording has been altered in subsequent Supplements and sections 683a, 684 and 686 added, the last embodying the act of March 2, 1903. No particular light seems to come from the codification, especially in view of the provision that neither Code nor Supplements are to work any amendment of statutes. It was held, however, in United States v. Noce, 268 U. S. 613, 45 S. Ct. 610, 69 L. Ed. 1116, that the later pay acts did not operate to annul the congressional reversal of judicial ideas as to what is...