United States v. Moser

• Decision Date: 17 November 1924
• Docket Number: No. 99,99
• Citation: 266 U.S. 236,69 L.Ed. 262,45 S.Ct. 66
• Parties: UNITED STATES v. MOSER
• Court: U.S. Supreme Court

266 U.S. 236

45 S.Ct. 66

69 L.Ed. 262

UNITED STATES

v MOSER.

No. 99.

Argued and Submitted Oct. 21, 1924.

Decided Nov. 17, 1924.

Mr. James M. Beck, Sol. Gen., of Washington, D. C., Merrill E. Otis, of St. Joseph, Mo., and John G. Ewing, of New York City, for the United States.

[Argument of Counsel from page 237 intentionally omitted] Mr. George A. King, of Washington, D. C., for appellee.

[Argument of Counsel from page 238 intentionally omitted] Mr. Justice SUTHERLAND delivered the opinion of the Court.

This is a suit against the United States to recover the amount of the difference between the pay of a captain and a rear admiral in the navy, based upon section 11 of the Navy Personnel Act of March 3, 1899, c. 413, 30 Stat. 1004, 1007 (Comp. St. § 2641), as follows:

'That any officer of the navy, with a creditable record, who served during the civil war shall, when retired, be retired with the rank and three-fourths the sea pay of the next higher grade.'

Claimant, having served forty years from the date of his entrance into the Naval Academy, was retired under section 1443, R. S. (Comp. St. § 2620), which reads:

'When any officer of the navy has been forty years in the service of the United States he may be retired from active service by the President upon his own application.'

The right of the officer turns upon the question whether his service at the Naval Academy constitutes 'service during the civil war,' within the meaning of the provision first above quoted. Three previous suits for installments of salary—the right of recovery in each depending upon this same basic question—were decided by the Court of Claims in his favor. In each, the contention of the government was the same as it is here, viz. that service as a cadet during the civil war was not service within the meaning of the statute. Between the first and second of these suits, in another suit brought by a different claimant, the court construed the statute otherwise and denied that claimant a right of recovery (Jasper v. United States, 43 Ct. Cl. 368); the change of opinion being made to rest upon a later act, then for the first time called to the court's attention, which, in terms, excluded the period of service as a cadet, but with a proviso that it should not apply to an officer who had received an advance of grade at or since the date of his retirement (chapter 3590, 34 Stat. 553, 554).

In the second and third Moser Cases, however, the Court of Claims declined to follow the Jasper Case, holding that, by reason of its decision in the first Moser Case, the question was res judicata. The present suit was decided in Moser's favor upon the same ground; and, in addition, the court reverted to the position taken in the first Moser Case, abandoning, as unsound, its view as expressed in the Jasper Case, upon the ground that the right of the officer was saved by the proviso.

We find it unnecessary to consider the latter ruling, since we are of opinion that the court was clearly right in its application of the doctrine of res judicata.

The general principles are well settled, and need not be discussed. The scope of their application depends upon whether the question arises in a subsequent action between the same parties upon the same claim or demand or upon a different claim or demand. In the former case a judgment upon the merits constitutes an absolute bar to the subsequent action. In the latter case the inquiry is whether the point or question presented for determination in the subsequent action is the same as that litigated and determined in the original action. Cromwell v. County of Sac, 94 U. S. 351, 352, 353, 24 L. Ed. 195. The rule is succinctly stated in Southern Pacific R. R. Co. v. United States, 168 U. S. 1, 48, 18 S. Ct. 18, 27 (42 L. Ed. 355):

'The general principle announced in numerous cases is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of...