The ten percent increase over and above pay proper allowed to an
officer of the United States Army for service in Porto Rico, Cuba,
Philippine Islands, Hawaii and Alaska, under the Act of May 26,
1900, 31 Stat. 211, and beyond the limits of the states comprising
the Union and territories contiguous thereto under the Act of March
2, 1901, 31 Stat. 903, is to be computed upon the total amount to
which the officer is entitled at the time of such service both for
longevity pay and the pay provided for by § 1261,
Rev.Stat.
This is an appeal from a judgment of the Court of Claims in
favor of the appellee. The question relates to the amount of
compensation payable to him under the Acts of May 26,
Page 197 U. S. 224
1900, and March 2, 1901, making appropriations for the Army. The
particular provisions of these acts are set forth in the margin.
*
The court gave judgment in favor of appellee upon the authority
of its opinion in
Irwin v. United States, 38 Ct.Cl.
87.
The facts found by the court are as follows:
"The claimant, Stephen C. Mills, entered the military service of
the United States as a cadet at the Military Academy, July 1, 1873,
was commissioned second lieutenant June 15, 1877, and by successive
promotions became major and inspector general July 25, 1888, and
lieutenant colonel and inspector general February 2, 1901, and
still holds the last-named rank and office."
"The claimant was, by proper military orders, on duty with the
Army of the United States in the Philippine Islands from a date
prior to May 26, 1900, continuously until April 15, 1902, when, in
accordance with orders, he arrived at San Francisco, California, on
his return from said Philippine Islands. During all of that period,
he was serving in the Philippine Islands, and beyond the limits of
the states comprising the Union, and the territories of the United
States contiguous thereto."
"During the entire period from May 26, 1900, to April 15, 1902,
named in the next preceding finding, the claimant, while
Page 197 U. S. 225
holding the rank of major, was paid at the rate of $2,500 a
year, the minimum pay of the grade of major, established by §
1261 of the Revised Statutes (U.S.Comp.Stat. 1901, p. 893); $1,000
longevity increase; established by section 1262 of the Revised
Statutes, and $250 a year as the increase of ten percent upon his
pay proper, provided by the Act of May 26, 1900 (31 Stat. 211), but
calculated only upon the minimum or grade pay fixed by said section
1261."
"While holding the rank of lieutenant colonel during said
period, the claimant was paid at the rate of $3,000 a year, the
minimum pay of that grade, as provided by section 1261 of the
Revised Statutes, $1,000 longevity increase, provided by section
1262, and $300 a year as ten percent increase on his pay proper, as
provided by the acts of May 26, 1900, and March 2, 1901 (31 Stat.
211, 903), but computed only on the minimum pay of the grade."
"If said ten percent increase should be calculated upon the
total pay of $3,500 received by the claimant while in the rank of
major, his increase would be at the rate of $350 a year, instead of
$250, and, if so calculated while he was in the rank of lieutenant
colonel, the increase would be at the rate of $400 a year, instead
of $300, making a difference of $100 a year for the period covered
by the claim, and aggregating for the entire period $188.87."
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
The question is, upon what principal sum the ten percent
increase of compensation, to which the government concedes the
appellee is entitled, is to be computed. The appellee, as
Page 197 U. S. 226
major, was entitled by section 1261 of the Revised Statutes to
the pay of $2,500 a year. Subsequently, as lieutenant colonel, he
was entitled, by the same section, to the pay of $3,000 per year.
By the following section, 1262, it is provided that there shall be
paid to the officers below the rank of brigadier general "ten
percentum of their current yearly pay for each term of five years
of service," and by section 1263, the total amount of such increase
for length of service cannot exceed, in any case, "forty percentum
on the yearly pay of the grade as provided by law." Under section
1262, the appellee had become entitled to pay to the amount of
$1,000 a year in addition to the pay provided for in section 1261;
thus, as major, he was entitled to $2,500 per year, and under
section 1262, $1,000 more, or $3,500 under these two sections; as
lieutenant colonel, he was paid $3,000 per year under section 1261
and $1,000 more under section 1262, or $4,000 under these two
sections. He contended that the additional ten percent under the
acts of 1900 and 1901 should be computed on the respective sums of
$3,500 and $4,000, the total compensation granted by the two
sections, while the government insists that the percentage must be
computed upon the sums of $2,500 and $3,000, respectively, the
minimum pay granted to the grades of major and lieutenant
colonel.
The Court of Claims directed the computation to be made on the
total of the sums given by the two sections, and, in our opinion,
that court was right in so doing. The term "pay proper" used in the
Acts of May 26, 1900, and March 2, 1901, includes, in our opinion,
the longevity pay under section 2162 as well as the sum named as
pay under section 1261, the latter being the minimum sum for the
grade. Every five years of service, under section 1262, up to a
certain percentage of the yearly pay of the grade, as provided by
law (section 1263) entitles the officer to be paid ten percentum of
his yearly pay. The term "current yearly pay" (section 1262) was
the subject of examination as to its meaning in
United
States v. Tyler,
Page 197 U. S. 227
105 U. S. 244.
That case related to the claim of a retired officer, and the
question was whether he was entitled to the benefit of the section
(1262) after his retirement, and also, if he were so entitled, how
was the computation to be made. The Court held that he was entitled
to the benefit of the section, and that the percentage was to be
computed on the total amount of the pay of the officer, increased
as it might be by the periods of five years of service. Thus, the
increased pay derived from additional periods of five years'
service was added to the minimum pay of the grade, and ten
percentum of that total was held to be the proper compensation.
The government, however, contends that the term "current yearly
pay," mentioned in section 1262, has a different meaning from the
term "pay proper," contained in the acts under discussion, and it
insists that the latter term is not as comprehensive as the former.
We do not think that there is any such material difference between
the two expressions as in this case to demand their different
construction. "Current yearly pay" and "pay proper," as used in the
sections, mean the regular, ordinary pay which an officer may be
entitled to under the facts in his case, and if, by virtue of
length of service, he is entitled to receive the compensation
provided for in section 1262, that compensation is his "pay" or his
"pay proper," as distinguished from possible other compensation by
any allowances or commutation or otherwise. The method of
computation adopted herein by the Court of Claims is the same as
that adopted in
United States v. Tyler, supra; that method
has therefore received the approval of this Court, or at least it
has been held that the ten percentum of the current yearly pay is
to be calculated upon the aggregate pay provided for in the two
sections (1261 and 1262), and not merely upon the minimum pay
granted by section 1261.
In regard to retired officers, Congress subsequently provided
otherwise. 22 Stat. 117, 118.
The words, "pay proper," we see no reason to think are to be
construed differently from the word "pay." The term
Page 197 U. S. 228
means compensation, which may properly be described or
designated as "pay," as distinguished from allowances, commutations
for rations, or other methods of compensation not specifically
described as pay.
The government refers to the Act of Congress approved March 15,
1898 (Army Appropriation Act, 30 Stat. 318), as giving some ground
for the contention it makes in this case, because, as is stated,
Congress itself therein distinguishes between "pay proper," and
"additional pay for length of service," and it is urged that pay
proper does not include longevity pay in the opinion of Congress,
as expressed in the act. The provision of the act is as
follows:
"For pay proper of enlisted men of all grades, four million two
hundred and ninety thousand dollars."
"Additional pay for length of service, including hospital corps,
six hundred and seventy-one thousand, one hundred and seventy-two
dollars."
The act cited by the government, it will be seen, refers to
enlisted men, and not to officers at all. In that same act of 1898,
a provision for the payment of officers is in the following
language (30 Stat. 318):
"For pay of officers of the line, two million eight hundred
sixty-five thousand dollars."
"For pay of officers for length of service, to be paid with
their current monthly pay, seven hundred and ninety thousand
dollars."
And in the Appropriation Act of March 3, 1899, the appropriation
for enlisted men was changed so that it reads as follows (30 Stat.
1064, 1065):
"Pay of enlisted men of all grades, including recruits, thirteen
million, five hundred thousand dollars."
"For additional pay for length of service, seven hundred and
twenty-five thousand dollars."
Under the language of the Act of March 15, 1898, the Comptroller
of the United States had held that the language used in that act
showed that the compensation of enlisted men,
Page 197 U. S. 229
upon which the percentum provided for was to be computed, was
the minimum pay, not enlarged by any longevity pay to which the
person was entitled. At the very next session of Congress, the form
of the appropriation was changed, as we have seen. That change has
been continued since.
See Acts of May 26, 1900, 31 Stat.
206, March 2, 1901, 31 Stat. 896, June 30, 1902, 32 Stat. 508,
March 2, 1903, 32 Stat. 929, and April 23, 1904, 33 Stat. 260.
The ground for arguing that the term "pay proper" does not
include the "additional pay for length of service" was thus taken
away by a change in the form of the appropriation in all the acts
subsequent to that of 1898. As we have already stated, however,
that particular form in regard to enlisted men in the act of 1898
was never adopted providing for the pay of officers. Their regular
compensation and their compensation by reason of longevity services
are both spoken of in that act as "pay."
We have no doubt that the pay of the officer under the statutes
of 1900 and 1901, in connection with the Revised Statutes referred
to, consists of the amount granted for longevity service as well as
of the amount provided in section 1261, and that the total is "pay
proper," upon which total the percentage is to be computed provided
for in the acts of 1900 and 1901. Our attention has not been called
to any decision of this Court looking to the contrary
principle.
The judgment of the Court of Claims is right, and must be
Affirmed.
*
Act of May 26, 1900, 31 Stat. 211, c. 586.
"That hereafter the pay proper of all officers and enlisted men
serving in Porto Rico, Cuba, the Philippine Islands, Hawaii, and in
the Territory of Alaska shall be increased ten percentum for
officers, and twenty percentum for enlisted men, over and above the
rates of pay proper as fixed by law in time of peace."
Act of March 2, 1901, 31 Stat. 895, 903.
"That hereafter the pay proper of all officers and enlisted men
serving beyond the limits of the states comprising the Union, and
the territories of the United States contiguous thereto, shall be
increased ten percentum for officers, and twenty percentum for
enlisted men, over and above the rates of pay proper as fixed by
law for time of peace, and the time of such service shall be
counted from the date of departure from said states to the date of
return thereto."
