150 Opinion of the Court The court decided that the plaintiff was entitled to recover. WHITAKER, Judge, delivered the opinion of the court: Plaintiff sues for the difference in the retired pay which he has been receiving, based upon a salary of $4,500 a year, and the retired pay to which he claims he is entitled based upon a salary of $4,800 a year. The controversy arises by reason of plaintiff's occupation of a dwelling house furnished him by defendant. The rent of this dwelling house was deducted from plaintiff's pay. Defendant has paid him retired pay based upon his salary, less the reduction for rent. Plaintiff claims that he is entitled to retired pay based upon his salary without the deduction. We do not think there is any doubt but that plaintiff is correct. Section 6 of the Act of June 20, 1918 (40 Stat. 607, 608), gives to an employee of the Lighthouse Service retirement pay as follows: the annual compensation of persons so retired shall be a sum equal to one-fortieth of the average annual pay received for the last five years of service for each year of active service in the Lighthouse Service or in a department or branch of the Government having a retirement system, not to exceed in any case thirty-fortieths of such average annual pay received: Provided further, That such retirement pay shall not include any amount on account of subsistence or other allowance. Section 7 of the Act of August 5, 1939 (53 Stat. 1216, 1217) provides that the retirement pay of a former employee of the Lighthouse Service who had been commissioned in the Coast Guard under the provisions of that Act, "shall not be less than an annuity computed in accordance with the provisions of section 6 of the Act of June 20, 1918 * There is no doubt about the fact that at the time plaintiff was commissioned in the Coast Guard he was receiving a salary of $4,800 per anum. Prior to the date of his commission, on February 16, 1938, the Chief of the Division of Personnel of the Department of Commerce wrote him a letter in which he said: You are advised that your compensation has been changed as indicated below, effective February 16, 1938. 107 C. Cls. Opinion of the Court The indication below read as follows: From: $4,600 per annum. To: $4,800 per anum. The Act of March 3, 1926 (44 Stat. 161), reenacted and made permanent by the Act of March 5, 1928 (45 Stat. 162, 193), permitted the head of the Department to continue to furnish civilians in the field service with quarters, heat and light, etc., but provided that where this was done that "the reasonable value of such allowances shall be determined and considered as part of the compensation in fixing the salary rate of such civilians." The rental value of the quarters furnished plaintiff was fixed at $300 per annum. The result was that his salary of $4,800 was paid to him $4,500 in cash and $300 in the form of living quarters. Plaintiff's salary, however, remained the same, $4,800 per annum, and he is entitled to compute his retired pay on this basis. The second proviso of section 6 of the Act of June 20, 1918, which reads, "Provided further, That such retirement pay shall not include any amount on account of subsistence or other allowance," plainly does not cover plaintiff's situation. The subsistence and allowance referred to in that Act were things which were allowed an employee in addition to his salary. It had no reference to things paid an employee as a part of his salary. Plaintiff's salary was fixed at $4,800 per annum on February 16, 1938, and was never changed. He is entitled to retired pay based thereon. We have found that the difference between the retired pay which has been paid to him for the period from July 1, 1940 to January 15, 1942,1 and that to which he is entitled on the basis of a salary of $4,800 per annum, is $346.87. Judgment for this amount will be entered in his favor. It is so ordered. JONES, Judge; LITTLETON, Judge, and WHALEY, Chief Justice, concur. MADDEN, Judge, took no part in the decision of this case. 1 Plaintiff was recalled to active duty on January 15, 1942. 155 Reporter's Statement of the Case JOHN J. FELIN & CO., INC., A CORPORATION, [No. 45892. Decided October 7, 1946] On the Proofs V. Just compensation; OPA ceiling price not controlling in fixing award; loss inflicted must be compensated for.-The United States as a wartime measure has the right to fix a maximum price at which goods can be sold but when it takes a citizen's property or goods the Government is obligated to make just compensation therefor, and as a general rule, it has not compensated him justly unless it pays him an amount sufficient to take care of the loss inflicted as the result of the taking of his property. Same; basis for determination of amount of award.-The rule that the Government is obligated to put the citizen whose property is taken in as good position pecuniarily as he was in before his property was taken when applied to a case where he must replace the property taken, in order to carry on his business, is interpreted to mean that the defendant must give to plaintiff enough money to enable plaintiff to buy other property in place of that taken so that it will not sustain a loss. Same; compensation on the basis of cost to replace property taken.— In the instant case, it is held that the ceiling price fixed by the Office of Price Administration for the goods taken does not afford just compensation for the loss sustained by plaintiff by reason of the taking, and plaintiff is entitled to recover on the basis of what it would have cost plaintiff to replace the goods taken, at the time thereof. Same; jurisdiction.—The instant suit does not involve an attack on the Maximum Price Regulations, which can be made only before the Emergency Court of Appeals, since the plaintiff did not sell its goods to the Government, but they were taken by the Government, and suit for recovery of just compensation under the Constitution is within the jurisdiction of the Court of Claims. The Reporter's statement of the case. Mr. Arthur L. Winn, Jr. for the plaintiff. Messrs. Wilbur LaRoe, Jr., and Frederick E. Brown were on the brief. Miss Mary K. Fagan, with whom was Mr. Assistant Attorney General John F. Sonnett, for the defendant. The court made special findings of fact as follows: 1. The plaintiff, a corporation having its principal office in Philadelphia, Pennsylvania, is and for many years has *Defendant's petition for writ of certiorari granted. Reporter's Statement of the Case 107 C. Cls. been engaged in the business of packing pork products. It buys hogs in the Chicago, St. Louis and Indianapolis markets and transports them to Philadelphia where the hogs are slaughtered and converted into various pork cuts and products. The plaintiff is a wholesaler and sells and distributes its products through trucks maintained by it to retail dealers in the metropolitan area of Philadelphia. 2. On December 5, 1942, the President of the United States issued Executive Order No. 9280 by which he authorized and directed the Secretary of Agriculture to assume full responsibility for and control over the Nation's food program in order to assure an adequate supply and efficient distribution of food to meet war and essential civilian needs. Among other things, the Secretary of Agriculture was authorized by this Order to assign food priorities and to make allocations of food for human and animal consumption to Government agencies and for private account and to purchase and procure food for such Government agencies. 3. During February and March 1943, the Food Distribution Administration, an agency of the Department of Agriculture, was in charge of procuring meat for various Departments and Government agencies, which required it for shipment under the Lend-Lease program authorized by the Act of March 11, 1941. It had the authority to issue priority orders which had the effect of requiring packers to fill its orders prior to the filling of other orders and it procured meat by issuing to each packer operating under Federal inspection a priority order calling for delivery of a proportionate part of the total quantity needed at the time. Each packer's quota was based on the ratio of meat produced in his plant to the total production in all Federally inspected packing plants. 4. On February 2, 1943, the Food Distribution Administration sent plaintiff a priority order requesting it to deliver 225,000 pounds of lard and pork products, which are hereinafter described, to the Federal Surplus Commodities Corporation, an agency of the United States Government, for delivery under the Lend-Lease program. The order, known as a purchase order, stated that plaintiff would be paid the ceiling prices applicable under provisions of the Office of 155 Reporter's Statement of the Case Price Administration regulations, and that plaintiff was required to fill the order in preference to any other contract or purchase order of lower or no priority rating. 5. Prior to the receipt of the purchase order, plaintiff had supplied pork products to several Government agencies. By February 2, 1943, however, plaintiff had decided it could no longer afford to sell at the prices offered by Government agencies. Accordingly, plaintiff refused to make delivery and on March 1, 1943, the Director of the Food Distribution Administration, acting under the authority of Executive Order No. 9280 and specific authorization of the Secretary of Agriculture, made a determination pursuant to the Act of October 16, 1941 (55 Stat. 742), that it was necessary to requisition the property from plaintiff. The requisition was issued on March 1, 1943, and on March 3, 1943 the United States took title and possession of the following described property which was owned by plaintiff and was then located at its packing house in Philadelphia, Pennsylvania: 40,000 pounds Cured Regular Hams, 14 to 18 lb. range. 30,000 pounds Salted Fatbacks, 8 to 12 lb. range. 6. On March 24, 1943, plaintiff was directed to file proof of claim with the Food Distribution Administration, Washington, D. C. On the same day, plaintiff prepared and promptly thereafter filed its claim, stating that fair and just compensation for the property requisitioned was the sum of $55,525.00, which included $16,250 for the lard and $39,275 for the pork cuts. Plaintiff claimed that $39,275 was the cost of replacing the pork cuts and that the figure was arrived at on the basis of a live hog cost of $15.90 per cwt., at Chicago, Illinois, on the date of the requisition. Plaintiff also claimed that the ceiling prices provided for in applicable regulations of the Office of Price Administration (the prices offered by defendant) were less than fair and just compensation for the property because such ceiling prices were based upon a live hog cost at Chicago of $13.15 per cwt. 7. On May 7, 1943, the Director of the Food Distribution Administration made a preliminary determination that fair |