
    Richard W. Tyler v. The United States.
    
      On the Proofs.
    
    
      The claimant enters the Army as cm enlisted man December, 1861; is appointed lieutenant of infantry May, 1864; is retired as captain December, 1870. The retired pay allowed to him is three-fourths of the pay of a captain who has been five years in service. No increase of longevity pay subsequent to retirement is allowed, although he has been continuously in service on the active and retired list as soldier and officer more than fifteen years.
    
    I.There is nothing in the Revised Statutes, § 1274, to preclude an officer on the retired list from having his pay computed (including longevity pay) precisely as is that of an officer of his rank on the active list, subject only to the reduction of one-fourth.
    II.The Revised Statutes, § 1262, which give longevity pay to officers of the Army make no distinction between officers on the active and retired list. That of officers on the retired list is to he computed as if they remained on the active list, subject to the general deduction of one-fourth directed by section 1274.
    III.It is not the intention of the Revised Statutes, §§ 1245,1252,1275,1094, to place retired officers wholly out of the service. Officers on the retired list still remain in the service (§ 1094); are entitled to wear their uniform (§ 1256); may he assigned to certain duties, § 1259, and are subject.to the Rules and Articles of "War (§ 1256).
    IV.By the Revised Statutes, § 1223, retired officers are prohibited from holding an appointment in the diplomatic or consular service.
    
      Y. The Aet 18i7i Juno, 1878 (20 Stat. L., p. 145, § 7, eh. 263), which extends longevity pay so as to include service in 'the volunteers, or as an enlisted man, makes no discrimination against officers on the retired list.
    YI. The method of computing longevity pay prescribed by the Revised Statutes, § 1263, is not by taking one-tenth of the officer’s fixed annual pay, but one-tenth of his “ current yearly pay,” i. e., his second longevity pay will include 10 per cent, of his first longevity pay, &c., subject, however, to the provision of section 1263, which limits the total amount of such increase to 40 per cent, of the fixed annual pay.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. On the 26th day of December, 1861, the claimant was enlisted in the military service of the United States, and served as an enlisted man till May 25,1864.
    On the 25th of May, 1864, he was appointed lieutenant of infantry, and served as such in the active list till December 15, 1870.
    On the 15th of December, 1870, he was retii’ed and placed on the list of retired officers of the Army, for wounds received in battle, with the rank of captain of infantry, under the provisions of the Act August 3,1861 (12 Stat. L., 289, ch. 42, §§ 16, 17), and the Aet July 28,1866 (14 Stat. L., 337, ch. 299, § 32), that being the full rank of the command held by him in the service at the time such wounds were received.
    II. Since his retirement, December 15, 1870, he has received three-fourths of the pay of the rank of captain, allowed by statute to a captain who has been in the service more than five and less than ten years, and no more.
    
      The Claimant in person and Mr. li. B. Warden for the claimant:
    Service is not necessarily active duty, or even duty, for an officer of the government must be held to be in service so long as he is subject to orders under the laws with respect to his office. The Executive cannot command men who are not in the public service. If a retired officer is not in service, then he bas ceased to be an officer by virtue of Ms retirement and consequently is not in any way subject to tbe authority of the Executive as such; and yet retired officers were from the creation of the retired list to January 21,1870, held subject to assignment to any duty they were able to perform, at the discretion of the President. (Act August 3, 1861,12 Stat. L., 291, and Act July 17,1862,12 Stat. L., 596.) The Act January21,1870 (16 Stat. L., 62), relieved them from duty and prohibited their assignment to duty; but this act was so modified by section 23 of the act of July 15,1870, as to admit of their being detailed to serve as professors in colleges, and shortly after the law was still further modified so as' to admit of their assignment to duty at the Soldiers’ Homes.
    Now, a retired officer must be in service or the President could not assign him to duty. Section 1094 of the Revised- Statutes expressly states that officers of the Army on the retired list are a part of the Army of the United States, and from the creation of the retired list they have been held subject to discipline. Now, as they are held by the law and Articles of War subject to trials and dismissal from service, they must be presumed to be in service.
    The United States Supreme Court has decided that an officer who, on his own application, was ordered to his home to wait orders, must be held to have been on duty while so waiting orders, and entitled to full duty pay. (United States v. Williamson, 23 Wall., 411.) In all their relations to the government, save the matter of computing longevity pay, retired officers have always been held to be in service, and unless it is held that they are not in service, they must be allowed to include time on the retired list in computing length of service for the longevity pay.
    What is the pay of a retired officer’s rank 9
    I propose now to consider that clause of the statute which provides that “ officers retired from active service shall receive seventy-five per centum of the pay of the rank upon which they are retired.” Now, is there anything in this clause of the statute which in any way prohibits a retired officer from receiving the pay which is provided for all officers below the rank of brigadier-general for length of service; I submit there is no such’ limit, express or implied. It simply fixes the salaries of retired officers at three-quarters of the salary of the rank upon wbicbi they are retired. The additional percentage for length ■ of service is an allowance entirely separate and apart from the salary.
    What is the current yearly pay of an officer %
    
    This clause of the statute applies alike to all commissioned officers of the Army below the rank of brigadier-general. It makes no distinction whatever between those of the active and those of the retired list. What is an officer’s current yearly pay % Is it the bare salary, or is it the salary in conjunction with all other allowances of yearly pay. Current yearly pay is generally understood to be the whole amount of the yearly pay, which would include all that is reckoned as pay; the percentage increase must be regarded as pay. And it seems very clear that it is a part of the officer’s current yearly pay. The . officer’s salary is determined by his rank; his current yearly pay is determined by his rank in conjunction with his length of service, and the nature of his service with respect to extra allowances of yearly pay. Had it been the intention of the law to compute this percentage increase upon the bare salary, it would most certainly have said ten per centum of the pay of their rank or grade, and not ten per centum of their current yearly pay.
    This is clearly indicated by the next clause of the statute, which limits the increase not to 40 per cent, of the current yearly pay, but to 40 per cent, of the yearly pay of the grade. Under the present practice, to ascertain the amount of a retired officer’s pay add his pay for length of service to the salary of his rank, and three-fourths of these two amounts constitute his retired pay; or take 75 per cent, of the salary of the rank (in accordance with the statute), and add 10 per centum of that amount for each term of five years’ service. The result is the same either way, but this is a computation of the percentage upon the bare salary and nothing more. Whereas the percentage increase should be computed upon the current yearly pay, to wit, salary and previous accouments of longevity or service pay.
    Finally, I submit that I have shown conclusively: First, that retired officers are in service; second, that their pay is not limited to three-quarters of the amount which they were receiving at the time of their retirement; and, third, that the current yearly pay of all officers of the Army is the aggregate amount of their yearly pay.
    
      
      Mr. George C. Wing (with whom was the Assistant Attorney-General) for the defendants:
    The language of the opinion of this court in Roberts y. The United States (10 O. Cls. B., 285) is broad enough to include the present case:
    “In our opinion retired officers are entitled to no other compensation than that allowed by the last clause of the twenty-fourth section of the Act July 15,1870 (Bey. Stat., § 1274), above cited, and that they can have no allowance for length of service except as it contributes to make up the whole amount, with all its limitations, which they were receiving when retired, and upon which that clause operates to give them’ .75 per cent, thereof.”
    That this properly should be applied and preclude a recovery here is manifest when the form and words of the statute are examined in connection with the object and purpose of longevity and retirement.
    Bight construction is that the clause respecting retired officers being last and separated from other officers and their longevity allowance, the legislature was taking up a new subject concerning which it had not before made any provision. It cannot therefore relate back.
    The form of legislation when pay and longevity allowance is intended is not adhered to in the case of retired officers. Section 13 of the same act fixes the pay of the professors at the Military Academy; immediately is added the express provision for their longevity; and then new subjects are taken up and completed in the ten sections following. Section 24 begins by establishing pay for certain officers specified; as in section 13 there is at once attached the longevity allowance, subject to four provisos, each of which relates to officers in active service. An independent sentence, then, is devoted to establishing the pay of retired officers, but nothing is said respecting any percentage for time in the service.
    The fact that Congress, in thus dealing for the third time with the pay of a third class of officers, omitted to expressly attach, as in the other cases, longevity, is presumptive that the omission was intentional, for the course of legislation is to deal with pay and longevity allowance expressly and in the same sentence, and if sucb allowance was intended for retired service, either such, express provision would have been added to the closing sentence of section 24, or that sentence would have come in — as it might without changing a word — when the pay of all officers was being enumerated.
    Such construction comes within the principle stated by Dwarris, p. 707, with citation to 6 Bing., 561.
    If construction is not affected by the facts to which attention is above directed, the following construction seems clearly sustained :
    Tears of retirement are not “years of service” within the meaning of the above law. No service can be required of retired officers. Bev. Stat., §1259; {Collins v. United States, 15 C. Ols. B.)
    There shall be allowed and paid * * * ten per centum of their current yearly pay for each and every term of five years’ service. * * * (Act July 15, 1870, section 24.)
    
      Service imports action, and a rendering of actual labor or aid in accordance with an obligation so to do.
    Worcester :
    4. Duty, office, employment, business. “ To qualify themselves for public service.” — Swift.
    7. Military duty or employment.
    8. A military achievement or exploit. To see service (mil.), to be in actual collision with an enemy.
    Webster :
    1. The act of serving, * * * the performance of labor • for the benefit of another or at another’s command. * * *
    5. Duty performed in or appropriate to any office or charge; official function; hence specifically military or naval duty; performance of the duty of a soldier.
    The meaning which the word service has acquired in other statutes is to be given that word when used in the statute limiting longevity allowances. {Ex parte Ball, 1 Pick., 261, 262.)
    An inspection of the statutes makes clear that “service,” when used without the article, can have no other signification than actual duty performed, or the pretension and obligation to actully perform prescribed duties, active service. Sections 1096, 1097, Bevised Statutes., authorize aids to General and Lieutenant-General to have certain rank “while serving on the staff.” Section 1112: Indian scouts to be discharged “ when the necessity for tbeir service shall cease.” Section 1145: Commissioned officers “ serving in the field may purchase rations,” &c. Sections 1208, 1209: Brevets for distinguished conduct or public service in the presence of the enemy to bear date from the action or service for which the officer was brevetted. Section 1235: “Details to special service in the field.” In these instances the only signification the word can have is that which we claim for it in the act of 1870.
    The word is employed very frequently, but never when it could be understood otherwise that to import active duty, unless with the definite article. Upon the many occasions on which it is used with the sense which claimant’s theory would attach to it in the act of 1870, it is qualified. Claimant says the act means for five years in the Army. The words are “five years’ service.” But when the statutes use “ service” as synonymous with “Army ” or “in commission,” it ever employs the expression “ the service.” This signification cannot be questioned, and having too often to be accurately noted, attached the definite article to “service” where the meaning was “in the Army,” it cannot be said that the act of 1870, which did not use that expression, had the meaning which such expression would have given. When “in the Army” is intended, the expression is “the service.”
    So, if Congress intended to give 10 per centum for each five years in the Army, the expression used, as had repeatedly and invariably been whenever that idea was to be conveyed, would have been “each five years in the service.” But when it used service alone, it used the word to mean just what it meant in those statutes where it could signify nothing else than active service or readiness and obligation to perform active service.
    The distinction thus asserted is not a refined one. It accords fully with the object and conditions of longevity and retirement allowances.
    The only reasons which can correctly be assigned for the origin of longevity have no application to retirement. Longevity is given wholly from motives of policy for the good of the serv- • ice. It recognizes that experience is more valuable than inexperience, and is accordingly an inducement to competent and skillful officers to remain and not retire or resign. Retirement pay is a pure gratuity, and most of those who receive it have been practically forced out of their positions in the active service, because they are, as they have been formally declared to be, incompetent, and unable longer to perform duty.
    Congress might have authorized the complete severance by dismissal of officers who cannot longer be of service (just as it did by the Act July 17,1862,12 Stat. L., 596). Justice and patriotic motives restrain such a course, and dictated the retired system, which is simply an honorable pension to certain officers who cannot actually or lawfully render any service. In such view, with what object could longevity be intended, and why should the government, when it has made ample and generous provision for a class of helpless officers, add a further compensation only on condition that they shall continue to simply draw pay? The longer an officer can serve the more anxious should the government be to retain him. The longer an officer cannot serve — that is, the longer he has been in the condition of retired — the greater has been the government outlay to him, and the nearer has the government approached to acquitting itself for his former services. If there was any reason for a different pay for different years of retired officers, it should naturally be applied conversely to that for active service officers; the highest per centum to the earlier years of retirement rather than to the last.
    For even if the theory is’ that these officers are being paid what is justly due them for their past services, the system should be so that all of the same grade should receive as nearly as possible the entire amount that any one may obtain.
    Let two officers of equal rank be retired at the same time for injury of the same character and merit. If retirement is solely the acquitting of the government debt for that injury it should arrange so that in the endone would be compensated as fully as the other. It should say, We will at once, while you are all alive, make the principal part of our settlement, instead of making the smallest payment first and postponing the greatest to a time when it may be possible to discharge it to but few then living. This illustrates that the longevity clause in the statutes was not intended as applicable to the provision by which the government was to acquit itself as to retired officers of an obligation, the extent of which must always be known in in advance, and which would not be increased or changed by years.
    
      If tbe government, by retired pay, was endeavoring to compensate Captain Tyler for tbe loss of bis arm in gallant service, at tbe time of retirement it knew exactly bow great that loss was, and a rate would be fixed solely with reference to tbe wound and not to any future event.
    Tbe fact to which claimant’s brief alludes, that a large per centum of those on tbe retired list were retired with their maximum longevity allowance, but further shows bow complete is tbe system that gives a fixed sum on retirement, not thereafter to be increased, and bow unnecessary and foreign to that system would be a construction otherwise.
    As near perfect justice as possible is now done all, for those retiring on a maximum are necessarily those who have served from thirty to forty-five years, and are sixty-two years old. (Rev. Stat., §§ 1243,1244.) Their probable remaining years of life are comparatively few. Those, however, retiring with less than the maximum longevity must be those young in years as well as in the service. The government therefore is to support the latter in ease upon three-fourths of their entire pay at retirement a much longer time than it can the former class, and so the amount which each will have received during the period when no duty in return was rendered will not be far from equal.
   Richardson, J.,

delivered the opinion of the court:

The claimant entered the military service of the United States, as an enlisted man in the Army, December 26, 1861; was appointed lieutenant of infantry on the 25th day of May, 1864; was placed on the retired list December 15,1870, with the rank of captain of infantry; and has thus been in continuous service from his first entry up to the time of bringing this action.

He sues for pay which he alleges has accrued to him as a retired officer beyond that which has been allowed and paid to him at the treasury.

We must therefore determine what is the pay, by law, of a retired officer of the Army of the claimant’s rank, and how it is to be computed.

Section 1274 of the Revised Statutes is as follows:

Officers retired from active service shall receive seventy-five per centum of the pay of the rank upon which they are retired.”

The rank upon, which the claimant is retired is that of captain of infantry, designated in the pay section of the statutes as captain not mounted.

The pay attached to rank in the Army depends upon length of service.

For the first five years it is a fixed sum, as set forth in Eevised Statutes, § 1261. It is increased at the end of each five years of service, under the following sections of the statutes:

Eevised Statutes, § 1262:

“There shall be allowed and paid to each commissioned officer below the rank of brigadier-general, including chaplains, and others having assimilated rank or pay, ten per centum of their current yearly pay for each term of five years of service.”

Eevised Statutes, § 1263:

“The total amount of such increase for length of service shall in no case exceed forty per centum on the yearly pay of tlie grade as provided by law.”

Eevised Statutes, § 1267:

“In no case shall the pay of a colonel exceed four thousand five hundred dollars a year, or the pay of a lieutenant-colonel exceed four thousand dollars a year.”

Section 7, act of 1878, June 18, ch. 263:

“That on and after the passage of this act all officers of the Army of the United States who have served as officers in the volunteer forces during the war of the rebellion, or as enlisted men in the armies of the United States, regular or volunteer, shall be, and are hereby, credited with the full time they may have served as such officers and as enlisted men in computing their service for longevity pay and retirement. And the retired list shall hereafter be limited to four hundred, in lieu of the number now fixed by law.”

Notwithstanding the claimant has been in the Army continuously since December 26,1861, a period of more than fifteen and less than twenty years, embracing three terms of five years’ service each, the defendants contend that he is entitled to seventy-five per cent, of the pay of the rank of captain unmounted, upon which he is retired, allowed by law to an officer of that rank who has served one, and only one, period of five years.

This they do on two grounds:

First, that the closing words of section 1871 of the Eevised Statutes, viz, “upon which they are retired,” qualify the previous word “pay,” so as to limit tbe annual pay of a retired officer for tbe rest of bis life to that sum wbicb be first became entitled to at tbe very point of time when be was retired.

We are unable to concur in sucb a construction. It is in conflict with tbe obvious and grammatical connection of tbe language of tbe section, and is not in accord with tbe manifest purpose for wbicb tbe words “upon wbicb they are retired” were added. Those words plainly qualify tbe word “ rank,” immediately preceding them, and thus specifically define tbe rank, and notbing more, wbicb shall control, for tbe time being, tbe pay of retired officers.

All officers of tbe Army, whether on tbe active or retired list, with tbe single exception of chaplains, so far as we have observed, are paid according to their rank. (Wood’s Case, 15 C. Cls. R.,151.) But officers sometimes have more than one rank — tbe rank attached to and incident to their office, and tbe rank specifically conferred under tbe law, wbicb is independent of office, and is, as stated in Wood’s Case, a “ designation or title of honor, dignity, or distinction conferred upon an officer in order to fix bis relative position with reference to other officers in matters of privilege, precedence, and sometimes of command, or by wbicb to determine bis pay or emoluments.”

The Act July 28, 1866 (14 Stat. L., 337, ch. 299), since altered (Rev. Stat., § 1254), provided:

“ Sec. 32. That all officers of tbe Regular Army entitled to be retired on account of disability occasioned by wounds received in battle may be retired upon the full rank of tbe command held by them, whether in the regular or volunteer service, at tbe time sucb wounds were received.”

Under this act, while it was in force, tbe claimant, who, by appointment and commission, was a lieutenant in tbe Army, bolding tbe office of lieutenant, with rank of lieutenant attached, was retired with tbe higher rank of captain.

In order to avoid any ambiguity or uncertainty as to wbicb rank, in cases of that kind, as well as in some other cases, it was intended should govern tbe pay of retired officers, certain qualifying words seem to have been added, specifying that it should be tbe “rank upon wbicb they are retired,” that is, tbe rank wbicb they bold from time to time on tbe retired list, and wbicb is to regulate their pay.

This does not necessarily refer to tlie rank which they held at the time of retirement any more than it refers to the pay at the time of retirement, for the rank of officers on the retired list has been many times changed in particular cases; and we held in Wood’s Case that Congress has the power to change the mere rank of officers without the necessity, under the Constitution, of a new appointment and new commission, and that pay follows and is governed by rank alone.

Thus there is nothing in section 1274 of the Revised Statutes to preclude the claimant from having his pay computed precisely as is that of an officer of his rank on the active list, subject only to the reduction of one-fourth part, as there provided.

Second. The defendants further contend that officers on the retired list are not entitled to the longevity pay allowed by section 1262 of the Revised Statutes, except for the periods of five years in which they were in the active service; that when they are placed on the retired list they cease tobe in service, and so the periods therein specified cease to run.

We deem this to be an entire departure from the true meaning of the section.

The statute gives to each commissioned officer below the rank of brigadier-general additional pay for each term of five years’ service; that is, service as a commissioned officer in the Regular Army, excluding only service in any other capacity, such as that of an officer in the volunteer service and that of a non-commissioned officer or enlisted man.

It is upon this construction that the term of service of cadets at the Military Academy has never been reckoned for longevity pay, because they are not commissioned officers. It is upon this construction that the service which an officer performed as a private or as an officer in the volunteer forces during the rebellion was excluded from the computation of service, until Congress passed the act of 1878, June 18, ch. 263, above cited, which expressly authorized such service to be credited to them.

The construction which the defendants urge would place retired officers wholly out of the service. That is certainly not the intention of the law, either expressed or implied. Section 1245 of the Revised Statutes makes a distinction between officers retired from active service only and officers wholly retired, which implies that the former remain in service, though not in active service, while the latter are out of the Army altogether. This is the provision:

“When any officer has become incapable of performing the duties of his office, he shall be either retired from active service or wholly retired from the service, by the President, as hereinafter provided.”

The same distinction is made in sections 1252, 1275. So wherever in the statutes active service is meant, the word “active” is invariably inserted to qualify “service.” (Rev. Stat., §§ 1243-1245, 1249,1251-1257, 1274.)

In the section now under consideration the word “ active” is not used, and the word “service” is left unqualified, to receive its usual and natural interpretation.

Officers on the retired list still remain in the service. They hold commissions as officers of the Army, and by section 1094 of the Eevised Statues they are expressly designated as among those of whom the Army of the United States shall consist. It is true that they are generally exempt from active service. But they may be assigned to duty at the Soldiers’ Home (Eev. Stat., § 1259), and they are specially subject to many provisions of law which are imposed upon them for the very reason that they are in service as officers of the Army. By Eevised Statutes, section 1256, they are entitled to wear the uniform of the rank on which they are retired; their names are continued on the Army Eegister; and they are made “ subject to the Eules and Articles of War, and to trial by general court-martial for any breach thereof.”

The sixty-first article of war provides that “any officer who is convicted of misconduct unbecoming an officer or a gentleman shall be dismissed from the service.” There is no doubt that officers may be dismissed from the retired list under this article, and in the point of fact retired officers have been so dismissed. That could not be the case unless they are held to be in the service.

By section 1223 of the Eevised Statutes, retired officers, like all other officers of the Army, are prohibited from holding any appointment in the diplomatic or consular service of the government, on the pain of being held to have resigned their places in the Army.

Besides, being officers in the Army, Congress can at any time impose upon them special duties, wliicb they would be forced to perform.

These citations and illustrations are sufficient to show that officers do no.t cease to be in service by the mere fact of being placed on the retired list and relieved from active duties.

The language of section 1262 of the Revised Statutes, allowing longevity pay to each commissioned officer below the rank of brigadier-general, is broad enough to include the claimant, and to confer upon him the full benefit of its provisions, since he is a commissioned officer below the rank of brigadier-general. There is no exception of retired officers either in that section or in section 7 of the act of 1878, June 18, ch. 263, which extends its benefits so as to include service as officers in the volunteer forces during the war of the rebellion, or as enlisted men in the armies of the United States.

The defendants cite a passage from Roberts's Case (10 C. Ols. R., 283) which seems to be in conflict with these views, freely admitting, however, that it was a mere dictum not applicable to the point then in controversy.

The only question involved in that case was whether or not the pay of the claimant, as a retired officer with the rank of lieutenant-colonel, was limited to three-fourths of $4,000, by force of the Act 1870, July 15 (16 Stat. L., 320, ch. 294, § 24, now Rev. Stat., § 1267), when but for that section it would have been three-fourths of $4,200 underthe general provision for longevity pay. We. held then, as we now hold, that the pay of a retired officer is to be determined by first ascertaining what would have been his pay had he not been retired, and then allowing him seventy-five per cent, of that sum. The section which the claimant sought to avoid the force of limited the pay of a lieutenant-colonel to $4,000; and we held that it was a limitation upon the amount of the full pay of a lieutenant-colonel under the general provisions, of which he, as a retired officer, could receive only seventy-five per cent.

We then inadvertently said that the seventy-five per cent, was computed upon the pay which officers were receiving at the time they were placed on the retired list. This language happened to be used because in that case the result was the same as it would have been under the construction now given, and both parties had made their computation with reference to that period of time. The questions now raised were not then in controversy, and were neither argued nor alluded to in the brief, and were not considered by the court.

There remains one other question which, although of less importance than those which we have been considering, has been raised, and we must therefore pass upon. It relates to the manner of computing the ten per cent, longevity pay, and the meaning of the words “ current yearly pay ” in section 1262 of the Eevised Statutes. The defendants insist that the current yearly pay is the fixed annual pay, without the addition for longevity. Thus the pay of a captain not mounted is by section 1261 of the Eevised Statutes eighteen hundred dollars a year. For each term of five year’s service the defendants would add ten per cent, of that sum only, $180.

That is a convenient method of calculation, since it avoids fractions of dollars, and may have been adopted by the pay officers for that reason as it does not largely vary the result in any case. But it is not strictly accurate. Current yearly pay” implies a pay which is subject to change as the years run on. The expression is nowhere found in the statutes except in this connection. It evidently means ten per cent, of the whole pay the officer is receiving, or is entitled to receive, at the time he becomes entitled to an increase of pay. Thus for the first five years of service a captain unmounted receives $1,800; for the second five years, $1,980; for the third five years, $2,178; for the fourth five years, $2,395.80; and for the fifth five years it would be $2,635.38 but for section 1263, which limits the total amount of such increase not to exceed forty per centum of the “ yearly pay of the grade” as provided by law, which would reduce the latter sum to $ 2,520.

It is significant of the intention of Congress that in section 1263 the limitation of the total amount of increase for length of service is a percentage of forty per cent., not upon the “ current yearly pay,” upon which, by the next preceding section, the periodical increase is to be computed, but is upon the yearly pay of the grade”; thus making a distinction between current yearly pay ” and the unchanging “ yearly pay of the grade,” which we but adopt, follow, and apply with mathematical precision.

Eetired captains unmounted are entitled to three-fourths of those sums respectively, according to the length of their services.

It follows that the claimant should have received—

After tea years’ service as commissioned officer, computed from May 25,1874, to June 18, 1878, 4 years and 24 days, at the rate of $1,633.50 a year. $6,642 90

After fifteen years’ service, computed from December 26, 1861, under the act of 1878, June 18, ch. 263, § 7, allowing his term of service as an enlisted man to be included, from the date of the passage of that act to May 15,1880, when this action was brought, 1 year 10 months and 27 days, at the rate of $1,796.85 a year..... 3,428 99

10,071 89

Having been allowed only.„. 8,868 75

He is entitled to judgment for the balance. 1,203 14

Judgment will be entered in favor of the claimant for the sum of $1,203.14.

HUNT, J., was absent by reason of illness when this case was tried, and -took no part in the decision.  