A-18746, JUNE 30, 1927, 6 COMP. GEN. 866

A-18746: Jun 30, 1927

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WHICH WERE DISALLOWED SUBSEQUENT TO JUNE 20. TIDBALL WAS A CADET AT THE UNITED STATES MILITARY ACADEMY FROM JULY 1. WHEN HE WAS GRADUATED AND APPOINTED SECOND LIEUTENANT. HE WAS PROMOTED TO FIRST LIEUTENANT MARCH 31. IN WHICH GRADE HE WAS PLACED ON THE RETIRED LIST JANUARY 25. HE WAS ADVANCED ON SUCH LIST TO THE GRADE OF BRIGADIER GENERAL APRIL 23. WHICH WAS DISALLOWED BY SETTLEMENT NO. 6212. THE CLAIM WAS DISMISSED BY THE DECISION OF THE ASSISTANT COMPTROLLER OF THE TREASURY DATED DECEMBER 15. WAS FINAL AND CONCLUSIVE AND THAT IN THE ABSENCE OF FRAUD OR NEWLY- DISCOVERED MATERIAL EVIDENCE THE ACCOUNTING OFFICERS WERE WITHOUT JURISDICTION TO FURTHER CONSIDER THE CASE. THE CLAIM IS NOW MADE UNDER THE ACT OF JANUARY 29.

A-18746, JUNE 30, 1927, 6 COMP. GEN. 866

PAY - LONGEVITY - ACT OF JANUARY 29, 1927 THE ACT OF JANUARY 29, 1927, 44 STAT. 1054, AUTHORIZES THE SETTLEMENT OF CLAIMS FOR LONGEVITY INCREASE OF PAY OF OFFICERS OF THE ARMY, BASED ON CADET SERVICE IN THE UNITED STATES MILITARY ACADEMY, WHICH WERE DISALLOWED SUBSEQUENT TO JUNE 20, 1890, UNDER THE DECISION OF THAT DATE BY A FORMER COMPTROLLER OF THE TREASURY, AND PRIOR TO MAY 18, 1908, THE DATE OF THE REVERSAL OF THAT DECISION AS PUBLISHED IN 14 COMP. DEC. 795.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 30, 1927:

MABEL TIDBALL HAS REQUESTED REVIEW OF SETTLEMENT NO. 0179986, DATED MAY 27, 1927, DISALLOWING HER CLAIM FOR LONGEVITY PAY CLAIMED AS ADMINISTRATRIX OF THE ESTATE OF BRIG. GEN. JOHN C. TIDBALL, BASED ON HIS SERVICE AS A CADET IN THE MILITARY ACADEMY FROM JULY 1, 1844, TO JUNE 30, 1848, UNDER THE ACT OF JANUARY 29, 1927, 44 STAT. 1054.

THE RECORD SHOWS THAT JOHN C. TIDBALL WAS A CADET AT THE UNITED STATES MILITARY ACADEMY FROM JULY 1, 1844, TO JULY 1, 1848, WHEN HE WAS GRADUATED AND APPOINTED SECOND LIEUTENANT, THIRD UNITED STATES ARTILLERY. HE WAS PROMOTED TO FIRST LIEUTENANT MARCH 31, 1853, CAPTAIN MAY 14, 1861, MAJOR FEBRUARY 5, 1867, LIEUTENANT COLONEL JUNE 30, 1882, AND COLONEL MARCH 22, 1885, IN WHICH GRADE HE WAS PLACED ON THE RETIRED LIST JANUARY 25, 1889, AND HE WAS ADVANCED ON SUCH LIST TO THE GRADE OF BRIGADIER GENERAL APRIL 23, 1904. HE DIED MAY 15, 1906.

THE OFFICER MADE CLAIM FOR LONGEVITY PAY, BASED ON CADET SERVICE, UNDER THE ACT OF JULY 5, 1838, 5 STAT. 258, WHICH WAS DISALLOWED BY SETTLEMENT NO. 6212, DATED OCTOBER 1, 1883. ON DECEMBER 10, 1908, THE PRESENT CLAIMANT AGAIN MADE APPLICATION FOR SUCH ARREARS OF PAY UNDER THE BRODIE DECISION OF MAY 18, 1908, 14 COMP. DEC. 795, BUT THE CLAIM WAS DISMISSED BY THE DECISION OF THE ASSISTANT COMPTROLLER OF THE TREASURY DATED DECEMBER 15, 1908, FOR THE REASON THAT THE SETTLEMENT OF OCTOBER 1, 1883, WAS FINAL AND CONCLUSIVE AND THAT IN THE ABSENCE OF FRAUD OR NEWLY- DISCOVERED MATERIAL EVIDENCE THE ACCOUNTING OFFICERS WERE WITHOUT JURISDICTION TO FURTHER CONSIDER THE CASE. THE CLAIM IS NOW MADE UNDER THE ACT OF JANUARY 29, 1927, 44 STAT. 1054, WHICH AUTHORIZED THE REOPENING AND SETTLEMENT OF CERTAIN ACCOUNTS, AS FOLLOWS:

THAT THE COURT OF CLAIMS SHALL CERTIFY TO THE PROPER ACCOUNTING OFFICERS OF THE UNITED STATES THE FINDINGS OF FACT HERETOFORE MADE FOR CLAIMANTS IN CLAIMS OF OFFICERS OF THE UNITED STATES ARMY FOR LONGEVITY PAY UNDER THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES IN UNITED STATES AGAINST MORTON (VOLUME 112, UNITED STATES REPORTS, PAGE 1) AND UNITED STATES AGAINST WATSON (VOLUME 130, UNITED STATES REPORTS, PAGE 80), AND OF THE COURT OF CLAIMS IN STEWART AGAINST UNITED STATES (VOLUME 34, COURT OF CLAIMS REPORTS, PAGE 553).

AND THAT THE PROPER ACCOUNTING OFFICERS OF THE UNITED STATES SHALL PROCEED TO SETTLE THE CLAIMS SO CERTIFIED AND ALL OTHER CLAIMS FOR LONGEVITY PAY AND ALLOWANCES ON ACCOUNT OF SERVICES OF OFFICERS IN THE REGULAR ARMY ARISING UNDER SECTION 15 OF AN ACT APPROVED JULY 5, 1838, * * * AND SUBSEQUENT ACTS AFFECTING LONGEVITY PAY AND ALLOWANCES, IN ACCORDANCE WITH THE DECISIONS OF THE COURTS OF THE UNITED STATES IN ALL CASES IN WHICH HERETOFORE, NAMELY, BETWEEN 1890 AND 1908, SUCH CLAIMS WERE DISALLOWED BY ANY ACCOUNTING OFFICER OF THE TREASURY, AND NO DECISION OF A COMPTROLLER HERETOFORE MADE AGAINST A CLAIMANT UNDER SAID SECTION 15 SHALL PREVENT A SETTLEMENT UNDER THE TERMS OF THIS ACT OF ANY SUCH DISALLOWED CLAIM. * * *

THE ACT OF JULY 5, 1838, 5 STAT. 256, SECTION 15, PROVIDED FOR OFFICERS OF THE REGULAR ARMY ONE ADDITIONAL RATION PER DIEM FOR EVERY FIVE YEARS OF SERVICE. THIS PROVISION CONTINUED IN EFFECT UNTIL JULY 15, 1870, WHEN BY SECTION 24 OF THE ACT OF THAT DATE, 16 STAT. 315, IT WAS PROVIDED THAT THE LONGEVITY PAY OF OFFICERS SHOULD BE 10 PERCENT OF THEIR CURRENT YEARLY PAY FOR EACH FIVE YEARS OF SERVICE, BUT NOT TO EXCEED 40PERCENT THEREOF.

IN THE APPLICATION OF THESE ACTS THE ACCOUNTING OFFICERS HELD THAT SERVICE AS A CADET WAS NOT SERVICE IN THE ARMY TO BE COUNTED FOR LONGEVITY PURPOSES. THIS PRACTICE WAS ACQUIESCED IN AND FOLLOWED WITHOUT QUESTION FOR A PERIOD OF ABOUT 46 YEARS, WHEN CLAIM WAS MADE BY AN OFFICER TO INCLUDE CADET SERVICE. THE QUESTION REACHED THE SUPREME COURT OF THE UNITED STATES, WHERE IT WAS DECIDED OCTOBER 27, 1884, UNITED STATES V. MORTON, 112 U.S. 1, AND UNITED STATES V. WATSON, 130 U.S. 80, THE DECISIONS REFERRED TO IN THE ABOVE ACT, THAT THE TIME OF SERVICE OF A CADET IN THE MILITARY ACADEMY AT WEST POINT WAS SERVICE IN THE ARMY TO BE COUNTED IN THE COMPUTATION OF LONGEVITY PAY, AND BY DECISION OF MAY 8, 1889, SECOND COMPTROLLER BUTLER FOLLOWED THESE SUPREME COURT DECISIONS. THREE CLAIMS INVOLVING CADET SERVICE WERE ALLOWED UNDER THIS DECISION, WHEN ON JUNE 20, 1890, COMPTROLLER GILKESON OVERRULED AND SET ASIDE THE DECISION OF SECOND COMPTROLLER BUTLER, AND GAVE INSTRUCTIONS THAT ALL CLAIMS FOR LONGEVITY COMING UNDER THE HOLDING OF THE SUPREME COURT IN THE MORTON AND WATSON CASES SHOULD BE DISALLOWED. PURSUANT TO THESE INSTRUCTIONS, THE CLAIMS BASED ON THE WATSON DECISION ON FILE IN THE SECOND AUDITOR'S OFFICE, AND THOSE SUBSEQUENTLY RECEIVED BY THE ACCOUNTING OFFICERS UP TO MAY 18, 1908, WERE DISALLOWED.

ON MAY 18, 1908, ASSISTANT COMPTROLLER MITCHELL, IN THE CASE OF ALEXANDER J. BRODIE, 14 COMP. DEC. 795, OVERRULED THE GILKESON DECISION OF JUNE 20, 1890, AND HELD THAT ANY COMMISSIONED OFFICER OF THE REGULAR ARMY WHO HAD PRIOR SERVICE AS A CADET AT THE MILITARY ACADEMY WAS ENTITLED TO HAVE THAT SERVICE COUNTED UNDER THE ACT OF JULY 5, 1838, AND THE SUBSEQUENT ACTS CONFERRING RIGHTS TO LONGEVITY PAY AND ALLOWANCES. THE PURPOSE OF THE ACT OF JANUARY 29, 1927, IS TO AUTHORIZE THE SETTLEMENT OF THOSE CASES CERTIFIED BY THE COURT OF CLAIMS UNDER THE DECISION CITED AND THOSE CASES FOR LONGEVITY PAY BASED UPON SERVICE AS A CADET WHICH WERE DISALLOWED BY THE ACCOUNTING OFFICERS, AS INDICATED, BETWEEN JUNE 20, 1890, AND MAY 18, 1908. SEE SENATE REPORT NO. 614 OF APRIL 5, 1926, TO ACCOMPANY S. 1857 AND H.R. REPORT NO. 1138 OF MAY 7, 1926, TO ACCOMPANY H.R. 8321.

AS NO FINDING OF FACT WAS CERTIFIED BY THE COURT OF CLAIMS IN THE CASE OF GENERAL TIDBALL AND AS HIS CLAIM WAS NOT DISALLOWED BY THE ACCOUNTING OFFICERS BETWEEN JUNE 20, 1890, AND MAY 18, 1908, IT DOES NOT COME WITHIN THE PURVIEW OF THE ACT.

IT IS CONTENDED, HOWEVER, THAT THE RECORD SHOWS THAT THE CLAIM WAS DISALLOWED ON DECEMBER 15, 1908, AND A COPY OF A LETTER FROM THE AUDITOR FOR THE WAR DEPARTMENT, DATED FEBRUARY 10, 1910, TO HER ATTORNEYS, STATING THE FACT OF SUCH DISALLOWANCE, HAS BEEN FURNISHED AS EVIDENCE SUPPORTING THE CONTENTION THAT THE CLAIM IS WITHIN THE ACT OF JANUARY 29, 1927, AND THEREFORE ALLOWABLE BY THE ACCOUNTING OFFICERS THEREUNDER.

A LITERAL CONSTRUCTION OF THE WORDS "BETWEEN 1890 AND 1908" WOULD NOT INCLUDE EITHER OF THE YEARS MENTIONED, BUT ONLY THE INTERVENING YEARS, I.E., THE YEARS BEGINNING JANUARY 1, 1891, AND ENDING DECEMBER 31, 1907. THE FACTS AND CIRCUMSTANCES RELATED HEREIN AND A READING OF SENATE REPORT NO. 614 OF APRIL 5, 1926, TO ACCOMPANYING S. 1857 AND H.R. REPORT NO. 1138 OF MAY 7, 1926, TO ACCOMPANYING H.R. 8321 SHOW, HOWEVER, THAT THE PURPOSE OF THE SECOND PARAGRAPH OF THE ACT WAS TO AUTHORIZE THE ACCOUNTING OFFICERS TO SETTLE THE CLAIMS DISALLOWED UNDER THE GILKESON DECISION OF JUNE 20, 1890, AND PRIOR TO MAY 18, 1908, THE DATE OF THE DECISION OF ASSISTANT COMPTROLLER MITCHELL, IN THE CASE OF BRODIE, OVERRULING THE GILKESON DECISION. IN OTHER WORDS, IT IS CLEARLY MANIFEST THAT THE PURPOSE WAS TO LIFT THE BAR AGAINST ALLOWANCE OF THE CLAIMS WHICH WERE BEFORE THE ACCOUNTING OFFICERS AND DISALLOWED UNDER THE GILKESON DECISION AND WHICH WERE NOT ALLOWABLE UNDER THE BRODIE DECISION BECAUSE OF THE FACT THAT THE CLAIMS HAD BEEN DISALLOWED BY PRIOR SETTLEMENTS. THE ACTION TAKEN IN THE CASE OF GENERAL TIDBALL ON DECEMBER 15, 1908, WAS NOT A DISALLOWANCE UNDER THE GILKESON DECISION, AND HAVING BEEN SUBSEQUENT TO MAY 18, 1908, IT IS NOT A DISALLOWANCE WITHIN THE MEANING OF THE ACT OF JANUARY 29, 1927, AUTHORIZING THE ACCOUNTING OFFICERS TO SETTLE THE CLAIM. THE ACTION DISALLOWING THE CLAIM WAS CORRECT AND ON REVIEW THE SETTLEMENT MUST BE AND IS SUSTAINED.