
    ROBERT W. ALLEN v. THE UNITED STATES.
    
      [No. 15591.
    Decided May 31, 1887.]
    
    
      On the Proofs.
    General Order No. 75, Navy Department,-allows to officers “ not provided xoilh quarters on sliore stations” “a sum equal to 33$per centum of their pay in lien of all allowances; ” “ and thoseprorided with such quarters, 20 per centum of their pay in lieu of allowances for furniture or for lights and fuel.” The Supreme Court in Philbrielc’s Case (120 U. S. R. 52) affirms a judgment for this percentage. The judgment affirmed extends the percentage to the longevity pay to which the officer was legally entitled. The defendants now contend that the general order should he restricted to a percentage of the pay actually paid to officers at the time the order was issued, and that the Supreme Court did not pass upon the question.
    I. The General Order No. 75 of the Navy Department, 1866, which allows to officers “ not provided with quarters on shore stations” “asumequal to 33$ per centum of their pay,” means the pay to which each officer was legally entitled, including longevity pay.
    II. Though the opinion of an appellate court may say that a designated item “is the only one disputed on this appeal,” yet, if it appears that another item clearly and separately set forth in the findings of the court helow was likewise affirmed, it must he held that it was considered and passed upon hy the court above, and thepoint involved he taken as star e decisis.
    
    
      
      The Reporters1 statement of the case:
    In the case of Philbrick an opinion was read in the Court of Claims, but was not filed, and consequently the case was not reported. The findings which went to the Supreme Court and upon which the affirmance was based will,be found in the opinion in the present case. The following are facts now found:
    I. Eobert W. Allen is an officer of the Navy, to wit, a paymaster thereof; and he has served as such since the 1st day of February, 1868.
    II. In the adjustment of his claim for the benefits of the act of March 3,1883, the accounting officers of the Treasury deducted from the settlement made in his favor the sum of $1,112.75, being the amount paid him under General Order No. 75, issued by the Secretary of the Navy May 23, 1866.
    III. Said accounting officers refused in the settlement of said claim to allow claimant the further sum of $206.01, which said amount would have accrued to him if he had been credited at that time with his service prior to the date of his commission as paymaster.
    IY. The following is General Order No. 75 referred to in finding II:
    “[General Order No. 75.]
    “Navy Department, May 23,1866.
    “Congress having, in view of the call for increased compensation for officers of the Navy, repealed the law which prohibited any allowance to them “for rent of quarters or to pay rent for furniture, or for lights and fuel, &c.,” the Department, in order to prevent a recurrence of the irregularities, abuses, and arbitrary allowances which occasioned the prohibition, deems it proper to establish a fixed rate of compensation in lieu of the extra allowances which were prohibited by the law now repealed. Accordingly, from and after the first day of June proximo, officers who are not provided with quarters on shore stations will be allowed a sum equal to 33J per centum of their pay in lieu of all allowances, except for mileage or traveling expenses under orders; and those provided with such quarters, 20 per centum of their pay in lieu of said allowances.
    “The act of March 3,1865, having increased the pay of midshipmen and mates, the allowances hereby authorized will not be extended to them.
    “Gideon Welles,
    
      uSecreta/ry óf the Navy.”
    
      
      Mr. John Paul Jones for the claimant.
    
      Mr. N„ P. Dewees (witfc whom was Mr. Assistant Attorney-General Howard) for the defendants:
    Under General Order No. 7¿5 c‘officers who are not provided with quarters on shore stations will be allowed a sum equal to 331.- per centum of theiv pay,, in lieu of all allowances, except for mileage and traveling expenses under orders, and those provided with such quarters 20 per centum of their pay in lieu of such allowances.”
    The Philbrick Case does not decide that such allowances were to be regarded as an increase of the pay as provided by statute. The opinion is that by reason of established custom of the Department the Secretary of the Navy had the legal right to pay for quarters out of the appropriation under his control such sum as he may fix upon. Such payment purported to be in commutation of fuel, lights, &c., and not as an increase of pay. Such commutation was fixed at 33£ per. centum, or 20 per centum of the amount of the pay then fixed by statute.
    If at the time the basis for commutation of fuel, lights, &c., was promulgated said act had been in force, it is possible that the Secretary of the Navy would have adopted the same basis of commutation of fuel, quarters, &e., as he did in promulgating General Order No. 75, but this is not by any means certain.
    His action would probably have been determined by the amount of the appropriation under his direction available for such purpose.
    The evident intent of the act of 1883 is that the pay of the officers and enlisted men referred to in the act shall be determined by their length of service. The commutation for fuel, lights, &c., was no part of such pay. The amount of pay being received at the time of the issuance of Order No. 75 probably operated as a guide to enable the Secretary of the Navy to fix an amount which he would pay for the specific purpose out of the appropriation available.
    The decision in the Philbrick Case only goes to the extent that the Secretary, in accordance with the custom of the Department, having made the allowance, and the same having been paid, the vaidity of such order and the payment will not now be questioned. The claim is now for an additional payment Let contemplated in the original order.
    The power of the Secretary of the Navy was limited by his authority» Claimant is confined in his demand to what the Secretary of the Navy did do, not by what he might have done.
   Davis, J.,

delivered the opinion of the court.

The facts in this case are precisely similar to those in the case of Philbrick, decided by this court at the last term (21 C. Cls. B., 511), and affirmed on appeal by the Supreme Court (120, U. S. B., 52). It is urged that one point in the Philbrick Case, which also is presented in the case at bar, was not in fact considered by the court, although judgment was entered here and affirmed above for the full amount claimed.

General Order No. 75, issued by the Secretary of the Navy May 23, 1866, fixed the allowance to officers of the Navy for rent of quarters, for furniture, for light, and for fuel. This order was held by the accounting officers to be unauthorized, and in computing claimant’s longevity pay they deducted the sum of $1,112.75 on account of payments made him in lieu of commutation of quarters, &c., between the date of his commission as paymaster and June 30,1870. This deduction is not now in question, the decision in Philbriek’s Case having clearly decided it to be erroneous. A further sum of two hundred and six dollars and four cents ($206.04) would have accrued to claimant on account of the allowance for commutation of quarters, &e., between the said dates had he then been given credit for prior service. That is, the percentage allowed by the Secretary of the Navy, under Order No. 75, was computed upon the pay then in fact being received by the claimant, and it is .contended on his behalf that as he is entitled to the benefits of the longevity pay act of March 3, 1883, the further sum of $206.04 would have accrued to him under said general order if he had at that time been credited with his prior service. Stated in another way, the allowance should be calculated by taking the prescribed percentage, not of the pay actually being received by claimant at the time the order was in force, but of the pay which he has since been allowed under the longevity pay act. (Rockwell v. The United, States, 21 C. Cls. R., 332; affirmed on appeal, 120 U. S. R., 60; and Philbrick’s case, supra.

Parallel facts were before the court iu the Philbrick Case, where the claim was made up of two items the same in character, the first for $169.50, the second for $45.38, corresponding to the amounts here of $1,112.75 and $206.04. The Supreme Court affirmed Philbrick’s right to the total sum claimed by him; but it is urged that the point now made as to the second item was not pressed upon that tribunal, and did not receive their consideration. In support of this position we are referred to the following statement in the opinion: “In respect to the item of $169.50, which is the only one disputed on this appeal,” &c.

The defense allege that before the Supreme Court they contended only that General Order No. 75 was unauthorized and illegal; that if the position of the Government had been sustained, theD the whole controversy would have ended; whereas the converse of the proposition is not true, and the legality of the order being established, it does not follow that the claimant is entitled to the second item claimed by him.

There is'no dispute as to the fact that if claimant, between February 1,1868, and June 30,1870, when General Order 75 ceased to exist, had been given credit for prior service, and the allowance percentage had been calculated upon this increased sum, he would have received what he now claims. This was also true in the Philbrick Case. The petition in that case claimed separately the item like that now in dispute; claimant’s brief in both courts contained a statement in regard to it, as did defendant’s requests here. The fifth finding of fact made by this court reads as follows;

“If claimant had been credited on his warrant as an officer of the regular Navy with his prior service as a volunteer, the sum of $25.46 would have accrued to him after deducting internal-revenue tax on account of the allowance, authorized by the general order between November 12,1869, and June 30, 1870, in addition to the sums deducted in the settlement of September 8,1884.”

On appeal defendants assigned as error—

“1. In deciding as a conclusion of law based on the facts as found that the claimant is entitled to recover the money withheld by the accounting officers in the settlement of his account, to wit, the sum of $214.88.”

Finally, the Supreme Court in their opinion alluded to the disputed item, and affirmed the judgment entered here for the total amount. We are therefore of opinion that the question was considered by the Supreme Court, and that they reached the conclusion that, the legality of the general order once established, both items of the claim should be allowed.

Judgment for claimant for $1,318.79.  