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THE SEMINOLE NATION V. THE UNITED STATES

[No. L-89]

[90 C. Cls. 151; 310 U. S. 639)

Indian claim; purpose of Government as to former slaves, or freedmen, of Indian tribes; property rights. Decided January 8, 1940; petition dismissed, on the authority of Seminole Nation v. The United States, 78 C. Cls. 455.

Petition for writ of certiorari denied by the Supreme Court, May 27, 1940.

TENNESSEE CONSOLIDATED COAL COMPANY v.

THE UNITED STATES

[44084)

[89 C. Cls. 542; 310 U. S. 649)

Income tax; constitutionality of the statutes imposing taxes on capital stock and excess profits.

Demurrer sustained and petition dismissed, following the decision in the case of Allied Agents, Inc., 88 C. Cls. 315; 308 U. S. 561.

Petition for writ of certiorari denied by the Supreme Court, June 3, 1940.

BERTHA M. BAILEY AND W. C. BAILEY, JR., EXRS., OF THE ESTATE OF WALTER C. BAILEY, DECEASED, v. THE UNITED STATES

(No. 43505)

[89 C. Cls., 364; 90 C. Cls. 644; 311 U. S. --)

Estate tax; life insurance policy proceeds; effect of transfer of life ownership; payment of premiums by beneficiary after assignment. Decided March 4, 1940, on motion for new trial, petition dismissed, upon the authority of Helvering et al. v. Hallock et al., 309 U. S. 106.

Plaintiffs' petition for writ of certiorari dismissed as of September 27, 1940, upon stipulation requesting dismissal in view of settlement, pursuant to the 35th Rule of the Supreme Court.

THE UNITED STATES, PETITIONER, v. EMMETT F.

DICKERSON

(No. 44263. Decided November 6, 1939)

[89 C. Cls. 520; 310 U. S. 554]

Certiorari to review a judgment of the Court of Claims against the United States for the pay of reenlistment allowance on the ground that the Acts of Congress suspending the operations of Section 9 of the basic pay Act of June 10, 1922, for the fiscal years 1933–37, did not operate as a repeal of that Act and were not intended by Congress to do so; the basic act remained unchanged and without modification as it had always stood.

The judgment of the Court was reversed May 27, 1940, and rehearing was denied October 14, 1940, the Supreme Court deciding:

1. A proviso appended to an appropriation in § 402 of Public Resolution 122, June 21, 1938, declared "no part of any appropriation contained in this or any other Act for the fiscal year ending June 30, 1939, shall be available for the payment” of any enlistment allowance for "reenlistments made during the fiscal year ending June 30, 1939, notwithstanding applicable portions of sections 9 and 10" of the basic military pay act of June 10, 1922. Held, in view of its legislative history, that the effect of the proviso was not merely to restrict the funds available for reenlistment allowances, but to suspend the right to them during the fiscal year specified.

2. There should be a considered weighing of every relevant aid to construction, in determining the meaning of an Act of Congress.

Mr. Justice Murphy delivered the opinion of the Court, as follows:

The question is whether respondent, Dickerson, may recover a judgment against the United States upon a cause of action founded upon Section 9 of the Act of June 10, 1922 [c. 212, 42 Stat. 625, 629-630).

Section 9 provides that after the 1st of July 1922 an enlistment allowance shall be paid to every honorably discharged enlisted man ... who reenlists within a period of three months from the date of his discharge.” Respondent, who was honorably discharged upon the termination of an enlisted period ending on the 21st of July 1938, reenlisted on the following day, the 22nd, for a period of three years, but was not paid an enlistment allowance. He thereupon brought this action in the Court of Claims. It is conceded that Section 9, if not repealed or suspended at the date of his reenlistment, would entitle him to the sum of seventy-five dollars.

The Government opposed the action before the Court of Claims on the ground that Section 402 of Public Resolution No. 122, June 21, 1938 (c. 554, 52 Stat. 809, 818-819), suspended the allowance for reenlistment during the fiscal year ending June 30, 1939. Section 402 contains a proviso, appended to an appropriation for the Rural Electrification Administration, that “no part of any appropriation contained in this or any other Act for the fiscal year ending June 30, 1939, shall be available for the payment” of any enlistment allowance for "reenlistments made during the fiscal year ending June 30, 1939, notwithstanding the applicable portions of sections 9 and 10” of the Act of June 10, 1922.

The Court of Claims entered judgment for respondent on the ground that Section 402, while it restricted the funds available for payment of the allowance, did not suspend or repeal Section 9. Because of the importance of the issue in the administration of the revenues, we granted certiorari, March 25, 1940.

There can be no doubt that Congress could suspend or repeal the authorization contained in Section 9, and it could accomplish its purpose by an amendment to an appropriation bill, or otherwise. United States v. Mitchell, 109 Ù. S. 146, 150; Mathews v. United States, 123 U. S. 182; Dunwoody v. United States, 143 U. S. 578; Belknap v. United States, 150 U. S. 588, 593; United States v. Vulte, 233 U. S. 509, 515. See United States v. Langston, 118 U. S. 389. The question remains whether it did so during the fiscal year ending on the 30th of June 1939.

Section 9 remained in full force and effect during the eleven fiscal years ending on the 30th of June 1923 to 1933, after which date it was suspended during the ensuing four fiscal years by a provision inserted in various appropriation acts. Section 18 of the Economy Act of March 3, 1933 [c. 212, 47 Stat. 1489, 1519], provided that "So much of sections 9 and 10 of the Act. approved June 10, 1922 ... as provides for the payment of enlistment allowances to enlisted men for reenlistment within a period of three months from date of discharge is hereby suspended as to reenlistments made during the fiscal year ending June 30, 1934.”. This provision, which concededly suspended the authorization for the enlistment allowance, was continued in full force and effect for the fiscal years ending on the 30th of June 1935, 1936, and 1937 by its insertion in the Economy Provisions of the Independent Office Appropriation Act for the fiscal year 1935 and in the Treasury-Post Office Appropriation Acts for the fiscal years 1936 and 1937.1

The Second Deficiency Appropriation Bill of May 28, 1937 [c. 277, 50 Stat. 213, 232], also contained a provision affecting the enlistment allowance, but the form of words used was changed. That Act as passed by Congress provided that “no part of any appropriation contained in this or any other Act for the fiscal year ending June 30, 1938, shall be available for the payment of enlistment allowance to enlisted men for reenlistment within a period of three months from date of discharge as to reenlistments made during the fiscal year ending June 30, 1938, notwithstanding the applicable provisions of sections 9 and 10 of the Act” approved June 10, 1922. The identical provision, with the exception of the dates, was appended as a proviso to Section 402 of Public Resolution 122, copied above, and was made applicable during the fiscal year ending on the 30th of June 1939.

The provision inserted in the Second Deficiency Appropriation Bill for 1937 was introduced on the floor of the Senate as an amendment by Senator Byrnes. In response to questions concerning the amendment, the Senator stated (81 Cong. Rec. 4426):

the language of the amendment has been carried ordinarily in the Treasury and Post Office Appropriation Bill, bu

was not carried in that appropriation bill this year, and is therefore proposed to be included in the bill now before

us."

1 c. 102, 48 Stat. 509, 523; c. 110, 49 Stat. 218, 226-227; c. 725, 49 Stat. 1827, 1837.

“The effect of it is simply to carry the same limitation that has been carried for years in the appropriation bills.”

"Its purpose is to continue the appropriation situation that has existed for years, so that no bounty shall be paid for reenlistment in the military and other uniformed services.”

The amendment was thereupon adopted in the Senate without recorded opposition, and was sent to conference. The House managers, in reporting the amendment to the House, described it as “Continuing during the fiscal year 1938 the suspension of the reenlistment gratuity for enlisted personnel of the Army, Navy, Marine Corps, and Coast Guard.” 81 Cong. Rec. 5084.' The course of the debate amply discloses that the House regarded the amendment as continuing during the fiscal year 1938 the same restriction on the enlistment allowance as the provision inserted in earlier appropriation bills. It was then adopted by the House. 8i Cong. Rec. 5091.

The identical provision (except as to the dates), eventually appended to Section 402 of Public Resolution 122, was introduced as an amendment to the Second Deficiency Appropriation Bill for the fiscal year 1938 (H. R. 10851, 75th Cong., 3d Sess.), then pending in the House. 83 Cong. Rec. 8522-8569. A point of order was made against the amendment on the ground that it was legislation in an appropriation bill; Representative Woodrum, who had

. Mr. Scott, one of the chief speakers against the amendment, stated (81 Cong. Rec. 5089): "In 1933 an amendment went into the Treasury-Post Office appropriation bíll taking away or suspending this reenlistment bonus. The provision as continued by inserting it in the Treasury-Post Office appropriation bill each year from 1933 until this year. It was in the Treasury. Post Omce appropriation bill that was brought into the House for consideration this year. I raised a point of order against the provision on the ground it was legislation on an appropriation bill, and that it did not come under the Holman rule. The Chairman of the Committee sustained the point of order.

"The bill went to the Senate and the suspension was not placed in the bill. The second deficiency appropriation bill passed the House and went over to the Senate. This amendment was placed in there. It was clearly subject to a point of order in the Senate, but the point was not made against it.

"It now comes back to the House for a separate vote as an amendment. If we vote for this amendment it means the further suspension of the reenlistment bonus to the enlisted personnel of the Army, Navy, Marine Corps, Coast and Geodetic Survey, and Coast Guard."

Mr. Woodrum, who took charge of explaining the Conference Report to the House, stated (81 Cong. Rec. 5090): "In the first place, I wish to emphasize the fact that the language in the amendment only asks to continue this legislation for the fiscal year 1938. We ask in this amendment that during the next fiscal year this reenlistment bonus be not allowed ; and I may say, Mr. Speaker, this is not taking one solitary thing away from any enlisted man in the Army, Navy, or Marine Corps. He is getting exactly the pay that was promised him, and every member of the Army, Navy, and Marine Corps who enlisted during the last 3 years enlisted with the knowledge there was no reenlistment bonus going to be paid to him if he did reenlist.

they know now what they knew when they reenlisted, that the time has not yet come when the Congress can offer a bonus to people working for the Government."

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