
    GEORGE T. RIPPLE v. THE UNITED STATES
    
      [No. D-22.
    
      Decided June 1, 1925]
    
      On the Proofs
    
    
      Statutory construction; disciplinary hai-rachs guard, repeal; appropriation act; general act. — Where a general act is passed June 4, 1920, repealing .” all laws and parts of laws providing for extra-duty pay for enlisted men, to take effect July 1, 1920,” and an appropriation for the support of the Army is passed June 5, 1920, 41 .Stat. 948, 958, appropriating, among other things, for “ extra pay to soldiers on extra duty,” to become effective also on July 1, 1920, the provision in the appropriation act was repealed by the general act.
    
      Same; extra-duty pay; extra pay as specialist. — Where a private is designated by regulations issued by the Secretary of War in pursuance of the act of June 4, 1920, as a “ specialist, sixth class,” and he receives the extra pay provided for specialists in that class by section 4^-b of said act, in addition to his base pay, he is not entitled to extra-duty pay under any other act.
    
      The Reporter's statement of the case:
    
      Mr. George A. King for the plaintiif. King <& King were on the brief.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Hernum J. Galloway, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiif, George T. Ripple, is a citizen of the Unit, d States and has had the following service in the United States Army:
    Regular Army of the United States as a private since December 27, 1907.
    After several successive enlistments and honorable discharges he reenlisted on June 13, 1919, and was serving-under said enlistment on June 30, 1920.
    From a date prior to June 13, 1919, he was assigned as private to the 3d Company of the United States Disciplinary Barracks Guard at Fort Leavenworth, Kansas, doing duty as guard over general prisoners. He continued in this enlistment and in the performance of this duty until his discharge as private, first class, on June 12,1922.
    The plaintiff received extra-duty pay at the rate of 20 cents per day for services a.s a member of said Disciplinary Barracks Guard from a date prior to June 13, 1919, to and including June 30, 1920.
    II. By General Orders Nos. 36 and 49, regulations were prescribed by the Secretary of War under authority of the act of June 4,1920. The plaintiff was designated a “ specialist, sixth class,” which entitled him to $3 per month. He was paid this sum for the months of July and August, in addition to his base pay. On September 1, 1920, he was promoted to private, first class, his grade being changed, and he received $45 per month thereafter.
    III. The' plaintiff received his pay for one month from June 1 to June 30 as a private under his' third enlistment period under the act of May 18, 1920, and prior laws $36 a month.
    . Plaintiff also received during said month of June, 1920, $0.20 a day for 30 days for extra-duty pay as a member of the United States Disciplinary Barracks Guard under the Army appropriation act for the fiscal year of 1920, or a total sum of $6. The total amount credited and paid to the plaintiff for the month of June, 1920, was the sum of $42. '
    Plaintiff received pay for the month of July, 1920, under the act of J une 4,1920, as a private of over ten years’ service, the sum of $36. Plaintiff further received as and because of his rating as specialist, 6th class, the sum of $3, or a total of $39.
    Plaintiff received no pay for extra duty during said month of July, 1920, with the exception of the pay which he received for the performance of duty in the United States Disciplinary Barracks Guard because of his rating as said specialist.
    IY. If entitled to be paid extra pay at the rate of 20 cents a day he would have received the sum of $73 for the period from July 1,1920, to June 30,1921.
    The court decided that plaintiff was not entitled to recover.
   Campbell, Ohief Justice,

delivered the opinion of the court:

This case was heard with that of Thayer, decided this day, ante, p. 870. The questions of law involved in the two cases are alike, and the court’s reasons for its conclusions upon these questions appear more at length in the opinion in the Thayer case, to which reference is made. It is deemed unnecessary to repeat them here. The acts providing for extra-duty pay were repealed by the clause in the act of June 4, 1920, 41 Stat. 761, considered in the Thayer case. Ás a result the decision in the Marming case, 58 C. Cls. 195, is not followed. The question of repeal is not affected by the fact that the act upon which plaintiff relies was approved June 5, the day after the act of June 4 was approved. Neither of these acts was effective in the feature here involved until July 1, 1920, and the act of June 4 repeals all laws or parts of laws providing for extra-duty pay to take effect July 1, 1920. As a consequence the appropriation in the act of June 5, to which plaintiff must look, never took effect. In addition to this the facts disclose that the plaintiff was paid under the act of June 4 for the two months of July and August, 1920, $3 per month as a “ specialist sixth class.” The act provided for such a payment as extra pay to an enlisted man serving as specialist under regulations which the Secretary of War was authorized to make. By General Orders No. 36, under date of June 19, 1920, and by General Orders No. 49, the Secretary prescribed regulations affecting, among others, enlisted men of the sixth and seventh grades, designating them as privates, providing appointment as specialists and fixing the pay of specialist sixth class at $3 per month. In these General Orders No. 36 especial attention is called to the act of June 4 and to one of its results being “that extra-duty pay for enlisted men is not authorized after June 30, 1920.” Having been paid as a specialist the extra pay authorized under that designation for two months, in addition to his base pay, and from and after September 1, 1920, having been promoted to and paid as private, first class, at $45 per month, it is manifest that plaintiff can not recover under the claim he now makes, and these facts furnish additional grounds for dismissing his petition. And it is dismissed.

Hat, Judge; Downet, Judge; and Booth, Judge, concur.

GRAHAM, Judge, took no part in the decision of this case..  