
    CHRISTOPHER S. LONG v. THE UNITED STATES
    [No. 43642.
    Decided May 5, 1941]
    
      King <& King for the plaintiff.
    
      Miss Stella Akin, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
   Jones, Judge,

delivered the opinion of the court:

This suit was instituted by the plaintiff to recover the rental and subsistence allowances of his rank, with dependents, from August 1, 1931.

He had been commissioned as Acting Chaplain in the United States Navy with the rank of lieutenant, junior grade, effective as of the date of November 6,1926.

The special act under which the claim ivas filed was approved by the President of the United States on June 30, 1930 (46 Stat. 1951) and reads as follows:

Be it enacted, by the Senate and Mouse of Representatives of the United States of America in Congress assembled, That the President is authorized to place Lieutenant (Junior Grade) Christopher S. Long, Chaplain Corps, United States Navy, upon the retired list of the Navy with the retired pay and allowances of that rank: Provided, That a duly constituted naval retiring board finds that the said Christopher S. Long has incurred physical disability incident to the service while on the active list of the Navy.

On October 3,1930, the President approved the proceedings and findings of the Naval Retiring Board which had found that he was permanently incapacitated for active service and that his incapacity resulted from an incident of the service.

The question in this case turns upon what is included in the term “retired pay and allowances of that rank” as used in the special act quoted above. It is contended by the plaintiff that the term “allowances” includes rental and subsistence. The defendant contends it does not include these items.

On two different occasions this court lias passed upon the exact question at issue. Sweeney v. United States, 82 C. Cls. 640; Ralston v. United States, 91 C. Cls. 91, certiorari denied October 21, 1940, 311 U. S. 687. In each of these cases the language of the special act was substantially the same as in the case at bar. The questions were thoroughly considered and the court in each case reached the conclusion that the term “allowances” included rental and subsistence.

While the question is not altogether free from doubt, the court gave cogent reasons for the conclusions reached. Those two decisions construing exactly similar language are controlling in the instant case.

It is contended that the Congress in using the term “allowances” could not have meant to give to the plaintiff in this case provision that is not accorded officers of that rank generally. If that were true, why include the term “allowances” in the special act at all ? Why not simply give him the privilege of going before the naval retirement board for retirement under the regular provision for retirement of officers generally? This would have given him the same retirement privileges provided for other officers.

The question is not what the Congress should have done, Jbut what it actually did.

We have no right to pass on the wisdom of legislation. Our duty is simply to construe its practical effect, giving meaning to the language used and finding the intention of the Congress as disclosed by the language which it used in the special aet.

The very purpose of a special act is to take something out of the general class into which it would otherwise fall. The courts have no more right to invade the legislative field than the legislature has to invade the domain of judicial interpretation.

Numerous articles in the code provide for allowances for officers of both the Navy and the Army. They cover a wide field, depending upon the facts and circumstances, the nature of the assignment, and the conditions under which they are applied. However, the primary meaning of the word “allowances” has always been construed by both the Navy and the Army to be rental and subsistence. In addition to these, under certain circumstances they may also have travel pay; they may have quarters instead of allowances for. quarters, but the generally accepted meaning of the term “allowances” when used in the various articles of the code is that of rental and subsistence. These allowances — that is, rental and subsistence — are usually accorded officers in the active service only. That is the general provision of the law, and that is the position in which plaintiff would have found himself had the special act simply provided that he have the right to appear before the retirement board for retirement under the provisions of the general law.

The general provision for the retirement of officers is set out in Section 167, Title 14, U. S. C. A. It is as follows:

All officers borne upon the retired list prior to April 12, 1902, or thereafter, shall receive 75 per centum of the duty pay, salary, and increase of the rank upon which they have been or may be retired: * * *

It will be noted that in this article of the code which makes provision for the retirement of officers generally there is no provision for allowances for such officers. In other words, officers generally do not receive allowances when they have been retired.

Again we repeat that had plaintiff been retired under this statute, making the same proof that he made in the instant case, he would have received no allowances.

The Congress, however, made special provision for him. What reason the Congress had — whether it thought he had been wronged, whether there were some special facts in the case which made the Congress believe special provision should be made for him, whether it was trying to make up for some injury that had been done him — it is not our province to inquire. We may not inquire into the reason, but only into the fact of what it did as disclosed by the language used.

If by the special act the Congress desired to make special provision for “allowances” for plaintiff, what more specific term could have been used in the light of the various provisions that have been made for officers under the term of “allowances,” and in the light of a long line of construetion which has been uniformly adopted by the Army and the Navy through regulations, and which regulations construe the term “allowances” to mean primarily rental and subsistence?

To construe the term “allowances” as used in the special act as not including rental and subsistence is to practically give it no meaning at all. It could not refer to travel pay, which is allowed only when an officer is assigned to some duty away from his regular post. It could not apply to rental and subsistence which he would be given if called back into active service since by the terms of Section 163, Title 14, U. S. C. A., all retired officers so recalled receive these allowances ; therefore, the use of the term “allowances” in a special act was not necessary in order to secure to plaintiff such rights. Thus to deny the plain meaning of the term “allowances” is by judicial construction to eliminate the word used by the Congress and to strike it from an act that could have had no other purpose than to give the plaintiff, for some reason that was peculiarly within the province of the Con-: gress, the special provision that was made in the special act. If the court takes any other position it practically nullifies the plain provision of the special act. We repeat we have no authority to do this.

It is urged that there are other privileges and perquisites which a retired officer has and which could have been included within the term “allowances.” A simple examination of what those perquisites are will be sufficient to disclose the weakness of that position. One of these items is the right to hospitalization in naval hospitals. As a matter of fact, a deduction is made from the salary of all officers as a contribution to a hospital fund (Sec. 3, Title 24, U. S. C. A.). In other words, the officer purchases this right and pays for it. It becomes a vested right. The Congress would have no authority to take this away from him after he had purchased it. It is in the nature of an insurance contract. Another item urged is that he has commissary privileges; but these privileges are extended to officers of the Army and Navy, both active and retired, and even to civilian employees of the Army and Navy (Sec. 534, Title 34, U. S. C. A.). Other items suggested include the right to lie carried on the Navy Register and to wear the uniform of the highest wartime rank on ceremonial occasions. These items, of course, have no monetary value; on the contrary, they are usually a distinct expense. No legalistic phraseology can so warp the term “allowances” as to limit its application to the almost meaningless perquisites set out above.

Besides, it may be added that all the items above listed are accorded officers who are retired under the provisions of the general law. The plaintiff would have been entitled to these had he simply been given general retirement privileges. Whichever horn of the dilemma is chosen, we are driven to the conclusion that to construe the term “allowances” as not including anything more than the plaintiff would have been entitled to had he been retired under the general act is to nullify one of the main provisions of the special act that has been passed.

These facts are cited to show not only that the courts have practically determined this case by the principles enunciated in the Sweeney and Ralston cases, supra, but also to show the logical reason behind the construction there placed on the language of the Congress, which is supreme in the legislative field, and which for reasons it deems sufficient enacted into law the specific terms of the special act.

Plaintiff is entitled to recover the allowances claimed for a period beginning 6 years prior to August 31,1937, the date on which the petition herein was filed. The case, however, is a continuing one, and entry of judgment will be suspended pending the receipt from the General Accounting Office of a statement of the amount due plaintiff in accordance with this opinion.'

It is so ordered.

Green, Judge; and Whalex, Chief Justice, concur.

Madden, Judge,

dissenting:

I cannot agree that plaintiff is entitled to recover.

The question is whether Congress intended that plaintiff, having been made the beneficiary of a special act which permitted him to be retired though he had not fulfilled the usual requisites for retirement under the general statutes, intended further to prefer him above all other officers who are retired under the provisions of the general retirement laws. The findings of fact show that preference will amount to about $1,000 a year for life.

Such a discriminatory intention on the part of Congress should not lightly be found, as it would run counter to the natural instincts of legislators in common with other people. Admittedly, Congress could entertain and make effective by legislation such an intent. But an intent so unusual should, before it is found by a court, be solidly supported by the test of the statute, or by explanatory language used in the Committee or on the floor.

Here we get no light whatever from committee report or debate relating to the special act. Indeed a search of committee reports and debates with reference to a considerable number of such special acts over a period of years discloses that only rarely is the language of the committee directly helpful to an interpretation of the act. One case in which the Congressional intent was disclosed was that of Frank A. Jahn, a temporary officer (lieutenant, junior grade) in the Navy. Section 6 of the Act of July 12, 1921, 42 Stat. 122, 140, provided for the retirement of temporary officers under the general retirement statute if application should be filed not later than October 1, 1921. Jahn, in August 1921, filed a paper which was construed by the Judge Advocate General not to be an application for retirement, so that his time for filing a proper application expired. A special act of March 4, 1923, 42 Stat. 1500, authorized the President to appoint Frank Jahn a lieutenant (junior grade) in the Navy and to retire him and place him on the retired list of the Navy “with the retired pay and allowances of that grade.”

The House Eeport, 1252, 67th Congress, 2d Session, says of the bill which became the special act in that situation: “The purpose of this proposed legislation is to give to Frank A. Jahn the benefit of the Act of July 12, 1921, governing the retirement of temporary officers of the Navy.”

The language of Jaim’s act was the same as that of plaintiff’s act. The Congressional intent in Jahn’s case was not what plaintiff asserts that it was in his case.

The opinion of the majority suggests that perhaps plaintiff had been wronged; that Congress may have been making special provision for him for that reason. There is no word in any report or debate so indicating. If Congress had intended to give future preferential treatment to plaintiff to right a past wrong, it would have been natural for it to disclose that justification for treating this officer better than others.

To return to the text of the act, the majority opinion relies principally upon the use of the word “allowances” in the act, urging that unless plaintiff gets the rental and subsistence allowances of an active officer, which he is not, that word will be rendered meaningless since there are no “allowances”, or only small ones for regularly retired officers. In the Horton and Blair cases, decided today, that argument was rejected by the court as to the word “emoluments,” when used in special acts. It was shown that there are perquisites of office which regularly retired officers receive which satisfy the call of the word “emolument” for a meaning in the statute. Those mentioned are treatment in a naval hospital at much less than ordinary rates with free medical care while there, the privilege of buying at naval stores, and the privilege of sending one’s children to the public schools in the District of Columbia while not residing in the District. Plaintiffs in the Horton and Blair cases got those “emoluments,” and it was not thought necessary to give them still others which are denied their regularly retired brethren. The language of the special acts there involved, “with the retired pay and emoluments of that grade,” received the interpretation “with the retired pay and retired emoluments of that grade.” Thus a natural, easy, and non-discriminatory interpretation is made.

In this case the language of plaintiff’s special act, “with the retired pay and allowances of that rank,” receives in the majority opinion the interpretation “with the retired pay and activo service, allowances” of that rank. Thus a discriminatory and what seems to me a forced and unnatural interpretation is made.

This distinction is made, it is urged, because if it is not made, plaintiff will take nothing or little under the word “allowances” in his statute. But what of the perquisites which Horton and Blair and all the regularly retired officers will receive, and will have to be satisfied with? It is said that they are small, and that Congress could not have meant so little when it used the word “allowances,” though it meant just that when it used the word “emoluments.” It is also said that Congress could not have meant these perquisites, because all officers retired under general law receive them. This seems to me to involve a presumption that Congress intended to discriminate in favor of plaintiff and against all other officers, and a search for a meaning that will fulfill that presumption. I think the presumption should be the opposite, and that the meaning which lies readily at hand should be adopted.

Three general statutes use substantially the language of the special act here in question. Section 1026, Title 10, U. S. Code, enacted in 1916, reenacted in 1920 and 1939, relates to army officers and is as follows:

Any officer who shall have served four years as chief of a branch, and who may subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the grade held by him as such chief.

. Section 1026a, Title 10, U. S. Code, enacted in 1901, also relating to army officers, provides:

Any officer who on February 2,1901, held office in any corps or department, and who, since said date, has served or shall have served as chief of a staff corps or department and who shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the retirement of such corps or department chief.

Section 443, Title 5, U. S. Code, enacted in 1908, reenacted in 1922 and again in 1938, without modification here material, is as follows:

Any officer of the Navy who is now serving or shall hereafter serve as a chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the retirement of such bureau chief, and any officer of the Navy who prior to July 1,1922, has served four years as chief of a bureau in the Navy Department and shall be retired subsequent to the completion of such period of service for physical disability due to wounds inflicted by the enemy while in the performance of his duty shall be retired with the rank, pay, and allowances now authorized by law for the retirement of a chief of a bureau.

Every officer retired under the provisions of those statutes has the same right to active service allowances after he retires from the active service that plaintiff has. If the word “allowances” as used in those statutes can be satisfied, as to officers retiring under them, by their receiving what their brethren receive in the way of perquisites, I see no reason why plaintiff should receive more. Although a departmental interpretation giving such retired officers the allowances of officers in the active service would have lent strong support to plaintiff’s argument, considering that two of the statutes have been recently reenacted without material change after many years of administration, plaintiff has made no showing that they have received such an interpretation.

The decision of the majority adheres to the previous rulings of the Court in the Sweeney and Ralston cases. I think those decisions were wrong. It seems to me that today’s decision of the Court in the Willey case relies upon an immaterial verbal distinction between that case, on the one hand, and the present case and the Sweeney and Ralston cases, on the other. The necessity for such distinctions should be removed by declining to follow further the Sweeney and Ralston cases. I would dismiss plaintiff’s petition. I am authorized to say that Judge Littleton agrees with the views here expressed.

Littleton, Judge:

I concur in all the reasons given and the conclusions reached in the foregoing dissenting opinion and believe that they are fully sustained by the cases of United States v. Kirby, 7 Wall. 482, 486, 487; Ryan et al v. Carter et al, 93 U. S. 78, 84; Heydenfeldt v. Daney Gold and Silver Mining Co., 93 U. S. 634, 638; United States v. Moore, 95 U. S. 760, 763; United States v. Saunders, 120 U. S. 126, 129; United States v. Jones, 131 U. S. 1-14, 16-19; United States v. Chase, 135 U. S. 255, 258; Petri v. Commercial National Bank of Chicago, 142 U. S. 644, 650; Holy Trinity v. United States, 143 U. S. 45, 47, 49; In re Chapman, 166 U. S. 661, 667; Rhodes v. Iowa, 170 U. S. 412, 422; Hamilton v. Rathbone, 175 U. S. 414, 419, 421; United States v. Farenholt, 206 U. S. 226, 229; American Tobacco Company v. Werckmeister, 207 U. S. 284, 293, 296; Ozawa v. United States, 260 U. S. 178, 193, 194; United States v. Katz et al, 271 U. S. 354, 362; United States et al v. American Trucking Associations, Inc. et al., 310 U. S. 534, 542, 544, 553; Shacklette v. United States, 71 C. Cls. 376. 
      
       la addition to the perquisites mentioned in the Horton case, see U. S. Code, Tit. 34, sec. 994 (a), (6), (c), fixing the pay and allowances of an officer on the retired list, when on active duty.
     