649 Concurring Opinion by Judge Littleton is no contention to the contrary, and the prevailing opinion so finds. These contracts and route certificates were in no way affected by the events which occurred at the May 1930 conference. The May 1930 conference discussed the establishing of new routes and had nothing to do with contracts already in existence. At that time plaintiffs had the only transcontinental route and obviously it was detrimental to their interests to have additional transcontinental routes. established. Up to the time of the conference they vigorously opposed the additional routes because of the adverse effect it would have on their income from existing routes. Over their objection the Postmaster General proceeded with his determination to establish not only the transcontinental routes but various routes throughout the country. None of the recommendations at the conference for which extensions were granted by the Postmaster General was in favor of plaintiffs nor were any of the routes on which the parties failed to reach an agreement for a recommendation routes for which plaintiffs were making any claim. The suggestion that plaintiffs entered into a combination or agreement and observed it in order to protect their rates is not, in my opinion, supported by the record. It is difficult to see how plaintiffs would be parties to an agreement which was so directly opposed to their interests in the event the agreement was carried out and wherein they would and did obtain nothing. Not only do I think there was no agreement arrived at at the May conference of the character referred to in the prevailing opinion but, in any event, I cannot see plaintiffs as party to any such combination or arrangement. The meeting was open to the public. The publicity representative for the Post Office Department was present and issued a press release at the time. During the period of the conference, the Second Assistant Postmaster General reported to Congress that the conference was being held and minutes were kept of what occurred. Intelligent men of the type here involved would hardly follow such a course in connection with an unlawful combination or conspiracy. Plaintiffs were not only opposed to the transcontinental routes which the Postmaster General wanted to and did establish but they were opposed to the lengths to which the Concurring Opinion by Judge Littleton 98 C. Cls. Postmaster General went in making extensions. The prevailing opinion treats all these extensions as a part of the general plan formulated at the May conference. Plaintiffs' representatives vigorously opposed these extensions and went to the extent of initiating one or perhaps two investigations by Congress of these acts of the Postmaster General. It hardly seems reasonable to say that these parties entered into a combination or agreement and scrupulously observed it when at the same time they were in active opposition to what the Postmaster General indicated he was going to do, and also having these acts of the Postmaster General investigated by Congress. I think the record not only fails to show the existence of a combination or agreement within Section 3950 of the Revised Statutes but also shows facts directly opposed thereto. I do not think that anything Postmaster General Brown did after the May conference was in any way controlled or governed by any agreement at that conference. Certainly not so far as these plaintiffs were concerned. He was a man of strong determination and much interested in aviation and the air mail service. In his zeal to do what he may well have thought was for the best interests of the service he exceeded the authority given him by Congress and failed to observe Sections 3949 and 3709 of the Revised Statutes, U. S. C., Tit. 39, Sec. 429, and Tit. 41, Sec. 5, and the Watres Act. When it later appeared to the Postmaster General that express statutes had been disregarded in establishing air mail routes and letting air mail contracts, extended investigations were made both by the Congress and by the Post Office Department. The results of these investigations were reported to Postmaster General Farley and on the basis thereof, after careful consideration, he came to the conclusion that it was in the public interest to annul and cancel all existing route certificates and he did so. Having proceeded in that way on the basis of what was substantial evidence and having in mind the peculiar nature of these route certificates which, in my opinion, were subject to cancellation, his action of annulment and cancellation should be approved and sustained. In the circumstances, the propriety or legality of the Postmaster General's action in 1934 was not affected by the fact that plaintiffs were not par 649 Reporter's Statement of the Case ties to any fraud or conspiracy nor had entered into any combination or agreement to prevent the making of any bid for carrying the mail within the meaning of Section 3950. ROBERT H. MEADE v. THE UNITED STATES [No. 45181. Decided February 1, 1943] * On the Proofs Pay and allowances; lieutenant, civil engineers corps, U. S. Navy; equalization act of June 10, 1922.-The equalization act of June 10, 1922, did not contemplate the comparison of the active service of a lieutenant commander who prior to the act of March 4, 1913, was entitled to include in the computation of his active service his four years at the Naval Academy and the active service of a staff lieutenant who was not so entitled under said 1913 act. Roggenkamp v. United States, 76 C. Cls. 329, cited; Marvin v. United States, 78 C. Cls. 567, distinguished. The Reporter's statement of the case: Mr. Fred W. Shields for the plaintiff. King & King were on the brief. Mr. Philip Mechem, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. The court made special findings of fact as follows: 1. The plaintiff was appointed Midshipman, United States Navy, June 16, 1922; was commissioned Ensign from June 3, 1926; on August 14, 1929, was commissioned ad interim assistant civil engineer with rank of Ensign from June 3, 1926, raised to regular assistant civil engineer October 22, 1929. On November 12, 1929, he received notice of advancement to rank of Lieutenant, junior grade, Civil Engineer Corps from June 3, 1929. On July 8, 1936, he received notice of advancement to rank of Lieutenant, Civil Engineer Corps, from June 1, 1936. *Petition for writ of certiorari denied June 7, 1943. Reporter's Statement of the Case 98 C. Cls. On February 7, 1938, he was commissioned regular civil engineer with rank of Lieutenant from June 1, 1936, which rank he now holds. 2. Lieutenant Commander Robert Stanley Robertson, junior, U. S. Navy, retired, has served as an officer in the Navy as follows: 1905, June 15------ Appointed Midshipman 1911, June 19------ Commissioned Ensign from June 5, 1911 1915, September 22. Transferred to the retired list from Septem- 1916, January 28--- Recalled to active duty, reporting February 15, 1916 1916, July 5-- Detached from duty, reporting home July 14, 1916 1917, February 23. Recalled to active duty, reporting March 4, 1917 1918, September 6-- Temporarily appointed Lieutenant Commander on the retired list from July 1, 1918, accepting appointment and executing oath of office September 9, 1918 1918, November 12 Appointed Lieutenant on the retired list from July 1, 1918, accepting appointment and executing oath of office December 5, 1918 1919, March 14___ Temporary appointment as Lieutenant Commander revoked, reverting to status as Lieutenant on the retired list of the Navy 1919, March 15----- Relieved from all active duty by order of March 7, 1919 1924, November 29__ Ordered to active duty, reporting December 1928, May 28. 2, 1924 Commissioned Lieutenant Commander on the retired list to rank from April 26, 1928, accepting appointment and executing oath of office May 28, 1928 1928, September 29- Detached from duty, relieved of all active duty, and ordered home, in accordance with orders of May 22, 1928, as modified July 2, 1928 1939, October 16---- Ordered to active duty, reporting October 18, 1939 3. Since reporting for active duty on October 18, 1939, Lieutenant Commander Robert Stanley Robertson, junior, 797 Opinion of the Court has received the active duty pay and allowances of an officer of the fourth pay period. Active duty pay and allowances of an officer of the fourth pay period for the period from October 18, 1939, to the end of the year 1939, totals $239.67. The claim is a continuing one. The court decided that the plaintiff was not entitled to recover. WHALEY, Chief Justice, delivered the opinion of court: Plaintiff is an officer of the Civil Engineer Corps of the United States Navy who was appointed midshipman on June 16, 1922; was commissioned ensign from June 3, 1926; and was commissioned regular civil engineer with rank of lieutenant from June 1, 1936, which rank he now holds. Plaintiff seeks to compare for purposes of pay his record of active service with that of Lieutenant Commander Robert Stanley Robertson, Jr., who was appointed midshipman on June 15, 1905; was commissioned ensign to rank from June 5, 1911; was transferred to the retired list on September 19, 1915, and was retired, with the exception of a temporary period of active duty, until October 18, 1939, when he returned to active duty as a lieutenant commander on the retired list. Plaintiff has been receiving the pay and allowances of the third pay period as provided by the Act of June 10, 1922 (42 Stat. 625, 626) as amended by the Act of May 23, 1928 (45 Stat. 719, 720), which provides in pertinent part as follows: The pay of the fourth period shall be paid to * * * lieutenant commanders of the Navy * ** who have completed fourteen years service Plaintiff under this statute claims the difference between the pay and allowances of the third pay period which he is now receiving and the pay and allowances of the fourth pay period, which is being paid to Lieutenant Commander |