Delaney v. United States

67 Ct. Cl. 277, 1929 U.S. Ct. Cl. LEXIS 395, 1929 WL 2668

• Court: United States Court of Claims
• Decided: March 11, 1929
• Docket: No. H-70
• Status: Published

Opinion

MEMORANDUM BY THE COURT

The Secretary of the Navy addressed a letter to the Speaker of the House December 12, 1927, a portion of which we quote:

“ It is the view of the Navy Department that the provision above quoted from the act of August 29, 1916, repealed section 1445 of the Revised Statutes in so far as it relates to section 1444, Revised Statutes. This view is also taken by the compilers ,of the United States Code who, in the arrangement and wording of the code, make section 1445, Revised Statutes, applicable to section 1443 only. (U. S. Code, title 34, secs. 381, 382, 384.)

“ The Comptroller General of the United States takes the opposite view, namely, that section 1445 is still in effect as regards both sections 1443 and 1444. (Comp. Gen. Dec. of September 24, 1926, vol. 6, p. 203.)

“ The Navy Department has retired a number of officers who, if the view of the Comptroller General is correct, are illegally retired. The Comptroller General allows the payments to the officers so retired, but stated in his decision, cited above, that it is incumbent upon this department to recommend to Congress the enactment of legislation which will legalize the status of these officers.”

The Comptroller General disallowed the plaintiff’s claim on September 24, 1926 (6 Comp. Gen. 203), holding that the plaintiff was placed on the retired list in contravention of section 1445, Revised Statutes. This section uses the following language:

“ Sec. 1445. The two preceding sections shall not apply to .•any lieutenant commander, lieutenant, master, ensign, midshipman, passed assistant surgeon, passed assistant paymaster, first assistant engineer, assistant surgeon, assistant paymaster, or second assistant engineer; and such officers .shall not be placed upon the retired list, except on account of physical or mental disability.”

The recent act of Congress, approved January 28, 1929, •clarifies the situation and removes the legal conflicts in the way of plaintiff’s recovery. This statute is as follows:

“An Act to repeal section 1445 of the Revised Statutes of the United States.

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1445 of the Revised Statutes of the United States is hereby repealed.

“ Sec. 2. Section 1444 of the Revised Statutes of the United States is hereby amended to read as follows:

“' When any officer below the rank of Vice Admiral, including any officer of the Dental Corps, is sixty-four years old, he shall be retired by the President from active service: Provided, That the retirement of officers at the age of sixty-four years subsequent to August 29, 1916, is hereby validated.’ ”

The plaintiff is entitled to recover, and judgment is awarded him for $6,987.50. It is so ordered.