
    GEORGE V. STRONG v. THE UNITED STATES
    [No. C-849.
    Decided May 4, 1925]
    
      On the Proofs
    
    
      Army pay; professors at Military Academy. — The act of February 28, 1873, 17 Stat. 479, providing that “ each of the professors at the Military Academy whose service at the academy exceeds ten years shall have the pay and allowances of a colonel, and all other professors shall have the pay and allowances of lieutenant colonels,” is not repealed by the provision of section 51 of the act of June 4, 1920, 41 Stat. 785, that “ hereafter no detail, rating, or assignment of an officer shall carry advanced rank, except as otherwise specifically provided herein.”
    
      Same; lack of appropriation; recourse to Oourt of Claims. — Where pay and allowances have been fixed by law, the liability of the United States to pay exists, independently of any appropriation therefor, and the right may be enforced by proceedings in this court.
    
      The Reporter's statement of the case:
    
      Mr. 'William G. Wheeler for the plaintiff. Mr. Harry P. Wood was on the briefs.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiff entered the United States Military Academy at West Point on the 1st day of August, 1900, and has ever since that date been and still is in the United States Army, he having served in all grades as an officer to the grade of major, which he still holds on the active list of the United States Army.
    II. On the 27th day of December, 1919, while regularly holding a permanent commission as major on the active list of the United States Army, plaintiff, a judge advocate of the Army, was assigned to duty as professor of law under the act of June 6, 1874, 18 Stat. 60, in said United States Military Academy, and on the 2d day of January, 1920, he assumed the duties of professor of law and continued in the performance of said duties until the 16th day of June, 1922, when he was relieved from said assignment and duty by direction of the Secretary of War.
    III. While serving as professor of law at the United States Military Academy the plaintiff received the pay of a major of over 20 years’ service and the amount in addition provided in the Military Academy appropriation of March 30, 1920, from January 2, 1920, to June 30, 1921, the said act haying provided for pay of one professor of law in addition to pay as major, $500.
    The Military Academy appropriation act for the fiscal year 1922, passed on June 30, 1921, did not provide for any 'extra pay for officers on detached service at the Military Academy, and the plaintiff was paid while serving as professor of law at the Military Academy from June 30, 1921, to June 16, 1922, only the pay of a major of over 20 years’ service.
    If he is entitled to be paid for that period the pay of a lieutenant colonel he should have received in addition to what he was paid the sum of $480.59.
    The court decided that plaintiff was entitled to recover.
   Hay, Judge,

delivered the opinion of the court:

The act of February 28, 1873, 17 Stat. 479, provided as ■follows: “ Each of the professors of the Military Academy whose service at the academy exceeds 10 years shall have ■the pay and allowances of colonel, and all other’professors ■shall have the pay and allowances of lieutenant-colonels.” .

The act of June 6, 1874, provided: “That the Secretary of War may assign one of the judge advocates of the Army to be professor of law.” This act was the act making appropriations for the support of the Military Academy for the fiscal year ending June 30, 1875. It was under the provisions of the last mentioned act that the plaintiff was assigned to duty as professor of law at the Military Academy, he being at the time a judge advocate of the Army, and being also a major on the active list of the Army.

Unless the act of February 28, 1873, has been repealed it is very clear that the plaintiff, being a professor at the Military Academy, is entitled, while serving as such, to the pay of a lieutenant colonel. There is no ambiguity about the provisions of the act. Congress in the passage of the act was clearly within its rights when it fixed the pay and allowances to which the professors at the Military Academy should be entitled. And until Congress repeals this law, or amends it so as to provide that the officer assigned to be professor of law at the Military Academy shall receive different pay and allowances than those provided for in the act the officer so assigned must be paid the pay and allowances of a lieutenant colonel.

The act of June 4, 1920, 41 Stat. 785, upon which the Government seems to rely, provides as follows”: “ Hereafter ■ no detail, rating, or assignment of an officer sir all carry advanced rank, except as otherwise specifically provided herein.” This does not repeal the act of February 28, 1873. The last named act does not deal with rank, but only provides what pay and allowances shall be made to an officer-performing certain duties. ■ . .

And moreover in the case at bar the plaintiff had been; assigned to perform the duties of professor, of, law at the Military Academy before the passage of the act of June 4, 1920, and was performing those duties when the act was-passed, and was paid in accordance with the provisions of the act of February 28, 1873, up to June 30, 1921. He was-not paid from June 30,, 1921, to June 16, 1922, not because he was not-entitled to his pay under the act of February 28, 1873, but because Congress made no appropriation for that fiscal year for the pay and allowances provided for one performing the duties of a professor of law at the Military Academy.

But that fact does not preclude the plaintiff from obtaining relief in this court. His pay and allowances have beem fixed by law. The officers of the Treasury have-no authority to pay the officer until an appropriation therefor has been made. But the liability of the United States to-pay exists independently of the appropriation, and may be enforced by proceedings in this court. Collins v. United States, 15 C. Cls. 22, 35; Wood v. United States, 15 C. Cls. 151.

Graham, Judge; Downey, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  