Opinion of the Court

111 C. Cls.

all assistant commandants who retire, irrespective of their length of service.

We do not think the section can be so construed. We had practically the same question presented to us in the case of William E. Reynolds v. United States, 95 C. Cls. 160. We there considered the pay to which a retired commandant of the Coast Guard was entitled. We held that section 2 of the Act of January 12, 1923, which was similar to the Act of June 6, 1940, did not deprive an officer of the right given him by section 3 of that Act. Sections 2 and 3 of the Act of 1923 are quoted in the footnote below.2

Under section 2 of the Act of 1923 it was provided that when the Commandant of the Coast Guard should retire, he should receive the pay of a rear admiral, lower half, of the Navy on the retired list. Section 3 of the Act of June 6, 1940, provides that when the Assistant Commandant shall be retired, he shall receive the pay of a rear admiral, lower half. In the Reynolds case we held that section 2 of the Act of 1923 should be read in connection with section 3 of that Act, which provided that on the retirement of an officer who had served more than 40 years, he should receive the pay of one grade higher than that which he held at the time of his retirement. Under the Act of 1923 a commandant held the rank of a rear

office of Commandant. The Assistant Commandant shall be selected from the active list of line officers not below the grade of commander, and such appointment shall not create a vacancy; and the Commandant of the Coast Guard shall make recommendations for the appointment of the Assistant Commandant. The Assistant Commandant shall have the rank of rear admiral and the pay and allowances of a rear admiral (lower half): Provided, That an officer whose term of service as Assistant Commandant has expired shall take his place on the lineal list in the grade that he would have attained had he not served as Assistant Commandant: Provided further, That any officer who was serving on February 15, 1940, or shall thereafter serve, as Assistant Commandant shall, when retired, whether before or at any time after the termination of his service as Assistant Commandant, be retired with the rank of rear admiral and the retired pay of a rear admiral (lower half)." 2 "SEC. 2. That any officer who shall hereafter serve as commandant shall, when retired, be retired with the rank of commandant and with the pay of a rear admiral (lower half) of the Navy on the retired list,

"SEC. 3. • Provided further, That hereafter when a commissioned officer of the Coast Guard who has had forty years' service shall retire, he shall be placed on the retired list with the rank and retired pay of one grade above that actually held by him at the time of the retirement; and, in the case of a captain, the rank and retired pay of one grade above shall be the rank of commodore and the pay of a commodore in the Navy on the retired list."

793

Opinion of the Court

admiral, and drew the pay of a rear admiral, lower half, and, therefore, under section 3 of that Act any commandant who retired after forty years' service was entitled to the pay of a rear admiral of the upper half. We held that section 2 applied to commandants generally, irrespective of their length of service, but that when read in conjunction with section 3 it meant that a commandant who had forty years' service was entitled to the pay of a rear admiral of the upper half.

Section 3 of the Act of 1940 should also be read in conjunction with section 3 of the Act of 1923. Reading them together they mean that an assistant commandant, whatever may have been his length of service, is entitled upon retirement to the pay of a rear admiral of the lower half; but, if he has had forty years' service, he is entitled to the pay of a rear admiral of the upper half.

Plaintiff is entitled to the pay of a rear admiral of the upper half from the date of his retirement on January 1, 1942. Judgment will be entered upon the filing of a stipulation by the parties, or, in the absence of a stipulation, upon the incoming of a report of a commissioner, showing the amount due computed in accordance with this opinion. It is so ordered.

HOWELL, Judge; MADDEN, Judge; LITTLETON, Judge; and JONES, Chief Justice, concur.

801932-48 -52

CASES DECIDED

IN

THE COURT OF CLAIMS

June 1, 1948, to September 30, 1948

INCLUSIVE, IN WHICH, EXCEPT AS OTHERWISE INDICATED, JUDGMENTS WERE RENDERED WITHOUT OPINIONS

No. 46917. JUNE 1, 1948

W. Horace Williams Company.

Government contract. Upon a stipulation filed by the parties, and upon a report of a commissioner of the court recommending judgment in accordance therewith, it was ordered that judgment for the plaintiff be entered in the agreed sum of $57,000.

No. 46918. JUNE 1, 1948

W. Horace Williams Company.

Government contract. Upon a stipulation filed by the parties, and upon a report of a commissioner of the court recommending judgment in accordance therewith, it was ordered that judgment for the plaintiff be entered in the agreed sum of $64,000.

No. 47737. JUNE 1, 1948

J. O. Taylor and Edna E. Taylor, Extrx., et al., etc.

Government contract. On an offer of compromise made by the plaintiffs, which was accepted by the defendant, and upon a stipulation filed by the parties, and upon a memorandum report by a commissioner of the court recommending that judgment be entered for the plaintiffs in the agreed sum, it was ordered that judgment for the plaintiffs be entered in the sum of $29,834.27, in accordance with said stipulation.

111 C. Cls.

No. 47374. JUNE 1, 1948

Lewis Bolt & Nut Company.

Government contract. Upon a stipulation filed by the parties, and upon a report of a commissioner of the court recommending judgment in accordance therewith, it was ordered that judgment for the plaintiff be entered in the agreed sum of $3,000.

No. 47283. JUNE 3, 1948

Harry P. Guion, Trustee in Bankruptcy of P. Sanford Ross, Incorporated.

Government contract; extra work; unexpected conditions. See 108 C. Cls. 186.

Upon plaintiff's offer of compromise, which was accepted by defendant, and upon a stipulation entered into by the parties, and upon the memorandum report by a commissioner of the court recommending that judgment be entered in favor of the plaintiff in the agreed sum, it was ordered that judgment be entered for the plaintiff in the sum of $7,114.03, in accordance with said stipulation.

Immigration and Naturalization Pay Cases

On the authority of the case of Walter A. Renner v. The United States, 106 C. Cls. 676, and upon stipulations of the parties in the cases set forth below, showing the amounts due each of the plaintiffs in accordance with the records of the Director of Immigration and Naturalization, Department of Justice, as extra pay for services performed on Sundays and holidays for the periods and in the amounts mentioned therein; and upon the report of a commissioner in each case recommending that judgment be entered in favor of the plaintiffs for the respective amounts stated in the several stipulations, and on motions by the several plaintiffs for judgment, it was ordered that judgment be entered in the respective amounts set forth below, as follows:

48096

ON JUNE 1, 1948

Elizabeth J. Atkinson___ 48099 Frank W. Boniface____.

$1,097. 70

1, 656. 43