United States v. Noce

• Decision Date: 30 April 1925
• Docket Number: No. 360,360
• Citation: 268 U.S. 613,69 L.Ed. 1116,45 S.Ct. 610
• Parties: UNITED STATES v. NOCE. Augued
• Court: U.S. Supreme Court

268 U.S. 613

45 S.Ct. 610

69 L.Ed. 1116

UNITED STATES

v NOCE.

No. 360.

Augued April 30, 1925.

Decided June 8, 1925.

The Attorney General and Mr. Asst. Atty. Gen. Letts, for the United states.

Mr. Samuel T. Ansell, of Washington, D. C., for appellee.

Mr. Chief Justice TAFT delivered the opinion of the Court.

Daniel Noce was major of engineers in the United States Army in the emergency establishment from May 18, 1920, until June 30, 1920, when he returned to a captaincy in the regular establishment. He sued the United States in the Court of Claims for $467.66 as longevity pay, alleged to be due him under the law over and above the pay he received. He was appointed cadet at the West Point Military Academy August 1, 1913. He was graduated April 20, 1917. If he can count for longevity pay his cadet service from August 1, 1913, to April 20, 1917, he will be entitled to the amount he claims from the date of approval of the Act of Congress (section 11, c. 190, 41 Stat. 601, 603; Comp. St. Ann. Supp. 1923, §§ 2089a[1], 8562ee), May 18, 1920, to April 19, 1922, the period covered by this suit. The accounting officers denied the claim.

The Court of Claims found that under the act claimant's cadet service must be counted, and gave judgment for him. The United States has appealed, and urges a reversal, on the ground that such a conclusion is forbidden by the Army Appropriation Act of August 24, 1912, c. 391, § 6, 37 Stat. 569, 594 (Comp. St. § 1923), which provides:

'That hereafter the service of a cadet who may hereafter be appointed to the United States Military Academy, or to the Naval Academy, shall not be counted in computing for any purpose the length of service of any officer of the Army.'

A similar provision was made in the Naval Appropriation Act of March 4, 1913, c. 148, 37 Stat. 891 (Comp. St. § 2619), as follows:

'Hereafter the service of a midshipman at the United States Naval Academy, or that of a cadet at the United States Military Academy, who may hereafter be appointed to the United States Naval Academy, or to the United States Military Academy, shall not be counted in computing for any purpose the length of service of any officer in the Navy or in the Marine Corps.'

The Court of Claims held that these two provisions held been repealed by the Act of May 18, 1920, already referred to. The act is entitled 'To increase the efficiency of the commissioned and enlisted personnel of the Army, Navy, Marine Corps, Coast Guard, Coast and Geodetic Survey, and Public Health Service.' It increased the pay of certain commissioned officers of the Army, Navy, Marine Corps, and Public Health Service, mentioning in detail the ranks affected and the increases provided. It provided for a temporary commutation of quarters, heat, and light theretofore granted to Army officers on duty in the filed to those of the Navy, Marine Corps, Coast Guard, and Public Health Service. It gave warrant officers of the Navy an increase, in addition to all pay allowances, of $240 per annum. It increased the pay of all enlisted men of the Army and Marine Corps and of female nurses 20 per centum, with certain exceptions. It increased the commutation rations of noncommissioned officers of the Army, of the Marine Corps, and of filed clerks of the Army and the Quartermaster Corps. It gave a new base pay for enlisted ratings of petty officers and noncommissioned officers and of enlisted men in the Navy, of the Naval Academy band, and of the Fleet Naval Reserve. It authorized the Secretary of the Navy in his discretion to readjust the prevailing rates of pay of civilian professors and instructors of the Naval Academy. In section 8 (Comp. St. Ann. Supp. 1923, §§ 8459 1/2a [3 1/2], [3 3/4]) it provided that the Coast Guard should have the same pay ratings to correspond with the Navy and mentioned the officers. Then by section 11 (Comp. St. Ann. Supp. 1923, § 8562ee and section 2089a[1]) it provided as follows:

'Sec. 11. That in lieu of compensation now prescribed by law, commissioned officers of the Coast and Geodetic Survey shall receive the same pay and allowances as now are or hereafter may be prescribed for officers of the navy with whom they hold relative rank as prescribed in the Act of May 22, 1917, entitled 'An act to temporarily increase the commissioned and warrant and enlisted strength of the Navy and Marine Corps, and for other purposes,' including longevity; and all laws relating to the retirement of commissioned officers of the Navy shall hereafter apply to commissioned officers of the Coast and Geodetic Survey: Provided, that hereafter longevity pay for officers in the Army, Navy, Marine Corps, Coast Guard, Public Health Service, and Coast and Geodetic Survey shall be based on the total of all service in any or all of said services.'

It is this proviso which it is said repealed the laws of 1912 and 1913 above quoted. It is urged that the words 'longevity pay shall be based on the total of all service in any or all of said services' are inconsistent with the exclusion of service in the Military Academy or in the Naval Academy from the calculation of longevity pay.

We are unable to put such a construction on this proviso. The whole act was intended to promote equality between the six services. After equalizing their pay, it was intended to give any officer or any man in either of the services the benefit of longevity increases for any service which he might have had in any other of the services. The...