Gibson v. United States (194 U.S. 182)

This is an appeal from the court of claims. The claimant is a retired rear admiral. This action was prosecuted to recover the difference between three fourths the pay of a brigadier general and that of a major general of the Army, accorded by statute to retired rear admirals. The court of claims dismissed the petition, holding the claimant entitled to three fourths the pay of a brigadier general. Upon the hearing in that court the following facts were found:

'I. The claimant, William C. Gibson, was duly appointed a captain in the Navy, to rank from February 18, 1900. While serving in that grade, then being an officer of the Navy, with a creditable record, who served during the Civil War, he was retired by the following order:

'Navy Department,

Washington, June 30, 1900.

'Sir: On July 23, 1900, you will regard yourself transferred     to the retired list of officers of the U.S. Navy, in      accordance with the provisions of § 1444 of the Revised      Statutes (U.S.C.omp. Stat. 1901, p. 1020), and with the rank      and three fourths of the sea pay of the next higher grade, i.      e., rear admiral, in accordance with the provisions of § 11      of the naval personnel act, approved March 3, 1899.

Respectfully,

John D. Long,

Secretary.

'Captain William C. Gibson, U.S. Navy, commanding U.S. S.     Texas.'

'II. Since his retirement he has received pay at the rate of four thousand one hundred and twenty-five dollars ($4,125) a year, being three fourths of five thousand five hundred dollars ($5,500) the pay fixed by § 1261 of the Revised Statutes of the United States (U.S.C.omp. Stat. 1901, p. 893), as that of a brigadier general in the Army.

'If paid at the rate fixed by said § 1261 for a major general in the Army, he would receive pay at the rate of three fourths of seven thousand five hundred dollars a year, being five thousand six hundred and twenty-five dollars ($5,625) a year, a difference of over and above what he has been receiving of one thousand five hundred dollars ($1,500) a year.

'III. From January 22, 1900, to July 3, 1900, inclusive, claimant was, by regular assignment, in command of the U.S. S. Texas, a seagoing vessel in commission. During that period he was, prior to the 18th of February, a commander, in receipt of pay at the rate of four thousand dollars ($4,000) a year, and from and after that date a captain, receiving pay at the rate of four thousand five hundred dollars ($4,500) a year. He did not, while so attached to and in command of said vessel, receive any sea ration or commutation therefor, under Revised Statutes, §§ 1578 and 1585 (U.S.C.omp. Stat. 1901, pp. 1083, 1085). 'Reply of Navy Department not printed.)

'The commutation therefor, at the rate of 30 cents per day, would amount to forty-eight dollars and ninety cents ($48.90).'

Messrs. George A. King and William B. King for appellant.

[Argument of Counsel from pages 184-186 intentionally omitted]

Assistant Attorney General Pradt and Mr. John Q. Thompson for appellee.

Statement by Mr. Justice Day:

Mr. Justice Day delivered the opinion of the court: